Rebel Property Group (Finance) Pty Ltd v Inner West Council

Case •

[2023] NSWLEC 1793

•

22 December 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Rebel Property Group (Finance) Pty Ltd v Inner West Council [2023] NSWLEC 1793
Hearing dates: Conciliation conference on 24 October and 14 November 2023
Date of orders: 22 December 2023
Decision date: 22 December 2023
Jurisdiction:Class 1
Before: Harding AC
Decision:

The Court Orders that:

(1) The Applicant is to pay the Respondent's costs thrown away as a result of the amendments made in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $7000 within 28 days of the date of this order.

(2) The appeal is upheld.

(3) Development Application No DA/2022/1164 for demolition of the existing structures and construction of a residential flat building comprising 47 apartments, a 2 storey basement car park and a publicly accessible open space at 37-47 Farr Street Marrickville is determined by the grant of consent subject to the conditions of consent in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – amended plans – conciliation conference – agreement between the parties – orders.

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15
EPA Regulation 2021, s 38, Sch 7
Inner West Local Environmental Plan 2022, cll 2.2, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.3, 6.8, 6.9, 6.29, 6.31, Sch 5, Pt 1
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023, cl 4, Sch 2, cl 2.14
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, s 2.48
State Environmental Planning Policy No 65 — Design Quality of Residential Apartment Development
Water Management Act 2000, s 90
Category:Principal judgment
Parties: Rebel Property Group (Finance) Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:

Counsel:
A Whealy (Solicitor)(Applicant)
L Smith (Solicitor)(Respondent)

Solicitors:
Mills Oakley Lawyers (Applicant)
Clayton Utz (Respondent)
File Number(s): 2023/201791
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 Rebel Property Group (Finance) Pty Ltd (the Applicant) against the deemed refusal by Inner West Council (the Respondent) of Development Application No DA/2022/1164. The Development Application was lodged with the Respondent on 4 January 2023.

  2. The development application seeks consent for the demolition of existing structures and construction of a residential flat building comprising 47 apartments, a 2 storey basement car park and a publicly accessible open space at 37-47 Farr Street Marrickville. The land the subject of the proceedings is legally described as Lot 141 DP 996914, Lots 1 and 2 DP 551480, Lot 16 DP 89715 and Lot 1 DP 1002575 (the Site).

  3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 24 October and 14 November 2023. At the commencement of proceedings, the parties undertook a view of the site and heard submissions from third parties.

  4. At the subsequent 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 application was amended as part of the conciliation process. In summary, the amendments include:

  1. Reduced basement footprint;

  2. Reconfiguration of basement and ground floor to amend waste truck/loading dock entry;

  3. Increased southern setback;

  4. Increased level 5 setbacks and new planter;

  5. Revised apartment layout, mix and reduction to 47 apartments;

  6. Increased size of the publicly accessible open space area and provision of accessible access via a platform lift; and,

  7. Additional information to address the concerns of Council.

  1. The parties advised the Court that an agreement under s 34(3) of the LEC Act was capable of being reached. The decision agreed upon by the parties is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment.

  2. 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.

  3. As the presiding Commissioner, I am satisfied that the decision 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 have considered the relevant jurisdictional matters arising with this application.

  4. The Inner West Local Environmental Plan 2022 (IWLEP 2022) applies to the development. Pursuant to cl 2.2 of the IWLEP 2022, the subject site is zoned R4 High Density Residential. Development for the purposes of a residential flat building is permitted with consent in the R4 High Density Residential Zone. In determining the development application, consideration has been given to the objectives of the zone.

  5. Pursuant to cl 4.3(2) of the IWLEP 2022, the Site is subject to a maximum Height of Buildings control of 20 m. The development application proposes a maximum height (at lift overruns) of 816mm above the standard and is therefore non-compliant. A cl 4.6 written has been prepared by Ethos Urban and assessed by the Respondent.

  6. The parties are satisfied that the written request has adequately addressed the matters required to be demonstrated in cl 4.6(3) of the IWLEP 2022 and that the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development within the R4 zone as required by cl 4.6(4)(a) of IWLEP 2022. The reasoning to support the variation includes that:

  1. the built form is consistent with the evolving character of the area;

  2. that the extent of the proposed height variation is minor and limited to the lift cores (being located centrally in the rooftop); and,

  3. there will be no unacceptable impacts on overshadowing and that the lift overruns allow equitable access to all levels of the building.

  1. It is for the reasons above that I agree that the decision of the parties, to support the upholding of the cl 4.6 written request, is a decision that the Court could have made in the proper exercise of its functions.

  2. Pursuant to cl 4.4 of the IWLEP 2022, a maximum floor space ratio (FSR) of 2:1 applies to 41-47 Farr Street and 3:1 applies to 37 Farr Street pursuant. The proposed FSR is 2.78:1 at 41-47 Farr Street, which is non-compliant, and there is no Gross Floor Area (GFA) on 37 Farr Street. An averaging of the FSR across the development site provides an FSR of 2.14. A cl 4.6 written has been prepared by Ethos Urban and assessed by the Respondent which addresses the unusual distribution of gross floor area across the sites.

  3. The parties are satisfied that the written request has adequately addressed the matters required to be demonstrated in cl 4.6(3) of the IWLEP 2022 and that the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development within the R4 zone as required by cl 4.6(4)(a) of IWLEP 2022. The reasoning to support the variation includes that:

  1. the built form is consistent with the evolving character of the area;

  2. the additional floorspace will not result in unacceptable amenity impacts on the surrounding area compared to a scheme that complies with the IWLEP 2022 height controls; and,

  3. the additional floor space will not result in a built form outcome that is overbearing or inconsistent with the intended future built form character.

  1. It is for the reasons above that I agree that the decision of the parties, to support the upholding of the cl 4.6 written request, is a decision that the Court could have made in the proper exercise of its functions.

  2. In accordance with cl 5.10 of the IWLEP 2022, the Site is not located in a heritage conservation area and is not a heritage item. The Marrickville Public School (including interiors) which is adjacent to the Site to the north is listed as Heritage Item I1218 in Sch 5, Pt 1 of the IWLEP 2022 however no works are required within the school site. Notwithstanding, a Statement of Heritage Impact (SHI) was prepared in support of the development application which considers the potential impact of the proposed development on the heritage significance of the listed items in the vicinity of the Site, being Marrickville Public School. The SHI states, and the Respondent agrees, that the proposed development is consistent with the heritage requirements and guidelines of the IWLEP 2022 and the assessment criteria of Heritage NSW.

  3. In accordance with cl 5.21(2) of the IWLEP 2022, 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 the development meets the criteria set out in that provision. The Site is not identified as being in the flood planning area and it is not a flood control lot but Council’s flood maps indicate considerable flows in Farr Street. Accordingly, the driveway design has been amended and the Respondent considers that the design changes satisfactorily deal with the potential flood impact. The Respondent is satisfied that a Flood Risk Management Report is not required in response to amendments made.

  4. In accordance with cl 6.1(3) of the IWLEP 2022 development consent must not be granted under this clause for the carrying out of works unless an Acid Sulfate Soils Management Plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. An Acid Sulfate soils management plan has been prepared and the Respondent is satisfied cl 6.1 is sufficiently addressed. As a result of these deliberations, I am satisfied that the requirements of this clause are addressed.

  5. Clause 6.2(3) of the IWLEP 2022 requires that prior to determining the application, various aspects relating to drainage and land fill are considered. Drainage patterns and soil stability in the locality of the development, soil and fill quality, and the effects of the development on the amenity of adjoining properties will be managed in accordance with the recommendations outlined in the Geotechnical Investigation. Measures to avoid, minimise or mitigate the impacts of the development have been addressed in the comments and recommendations of the Geotechnical Investigation. The Court is satisfied that the proposed development is consistent with cl 6.2 of the IWLEP 2022.

  6. In accordance with cl 6.3(3) of the IWLEP 2022, development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied in respect to various stormwater criteria, including soil permeability, prior to granting development consent. There is significant deep soil and landscaped areas onsite designed to maximise the use of water permeable surfaces, an on-site detention system is proposed in Condition 44, in Appendix B to this judgment, requires the provision of detailed stormwater drainage design plans incorporating specific design requirements suitable to the Site and the locality. Having regard to these matters, the Court is satisfied that the matters in cl 6.3(3) are appropriately met.

  7. The Respondent considers cl 6.8 of IWLEP 2022 applies to the proposed development because it is:

  • located on land near to the Kingsford Smith Airport;

  • in an Australian Noise Exposure Forecast (ANEF) contour of 20 or greater;

  • is likely to be adversely affected by aircraft noise; and,

  • involves the erection of a new building.

  1. An Amended Acoustic Report has been prepared by an appropriately qualified consultant which advised the development will meet the required levels to satisfy this clause. The parties' acoustic experts agree that the Amended Acoustic Assessment satisfies the Respondent's acoustic contention. On this basis, the Court is satisfied that the requirements of this clause are met.

  2. Clause 6.9 of IWLEP 2022 applies to the development application because it will result in a building that is greater than 14m in height. Pursuant to subcll 6.9(3) and (4), there are a number of matters relating to design excellence that must be considered. The parties agree that the matters have been considered and that the proposed development exhibits design excellence when assessed against the listed criteria. I am satisfied that adequate regard has been paid to the design excellence criteria.

  3. Clause 6.29 of the IWLEP 2022 applies to this development application because the Site is land identified as “Area 13” on the Key Sites Map and the application proposes development for the purposes of residential accommodation. Clause 6.29(2) requires that development consent must not be granted unless the concurrence of the Planning Secretary has been obtained. On 10 August 2023 concurrence from the Planning Secretary was received. On 1 October 2023 the State Environmental Planning Policy Amendment (Housing and Productivity Contributions) 2023 commenced and repealed cl 6.29 (see Sch 2, cl 2.14[2]). However, cl 4 of this amending SEPP contains a savings provision which specifies that a development application made but not finally determined before the commencement of that policy is determined as if the policy had not commenced. Accordingly, cl 6.29 of the IWLEP 2022 still applies to this application.

  4. Clause 6.31 of the IWLEP 2022 applies to the Site as it is land identified as “Area 13” on the Key Sites Map. Part 9.47 of the Marrickville Development Control Plan 2011 (MDCP 2011) satisfies the requirement under this provision that a development control plan be prepared for the land addressing certain matters listed in cl 6.31(3).

Integrated Development – Water Management Act 2000

  1. Condition 20 is consistent with the general terms of approval issued on 2 May 2023 by WaterNSW under the Water Management Act 2000 – s 90(2) which related to temporary construction dewatering only.

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. Section 4.6 in Ch 4 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires that a consent authority must not grant consent to any development unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. Further, if the land requires remediation to be made suitable, the consent authority is to be satisfied that the land will be remediated before the land is used for that purpose.

  2. Additionally, subss 4.6(2)-(4) require that prior to determining any development application which proposes a change of use on land that has been used, or is known to have been used, for a purpose prescribed under Table 1 of the Contaminated Land Planning Guidelines, the consent authority must consider a preliminary, and if necessary, detailed site investigation report.

  3. The Site is within a locality that has a history of commercial and/or industrial land uses such as cleaning product and solvent manufacturing storage and these historical uses comprise activities that are potential sources of contamination to the surface and sub-surface environment.

  4. The development application filed with the Court included a Detailed Site Investigation as well as a Remediation Action Plan (RAP). In response to Contention 1 of the Respondent's Statement of Facts and Contentions filed 18 July 2023, a Supplementary Contamination Investigation (SCI) of the Amended Application) and an Addendum RAP was also prepared.

  5. The SCI concluded that the Site could be made suitable for the proposed development subject to the implementation of recommendations included in the RAP and Addendum RAP. The parties and their respective contaminated land experts agreed that the additional assessments are sufficient to satisfy the mandatory considerations prescribed by s 4.6 provided the development is carried out in accordance with the agreed conditions.

  6. The proposed conditions of consent include specific contamination conditions which will require the implementation of the RAP and Addendum RAP.

  7. The Court can be satisfied that the Site can be made suitable for the proposed use and development after remediation in accordance with s 4.6 of the SEPP Resilience and Hazards.

State Environmental Planning Policy No 65 — Design Quality of Residential Apartment Development

  1. The development application is accompanied by a Design Verification Statement by Paul Buljevic, Registered Architect No 7768 dated 25 October 2023 and Design Report dated 25 October 2023 addressing the required matters in State Environmental Planning Policy No 65 — Design Quality of Residential Apartment Development.

State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 2 Infrastructure

  1. Section 2.48(2) requires that “… the consent authority must—

  1. give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and

  2. take into consideration any response to the notice that is received within 21 days after the notice is given.”

  1. The development application was referred to Ausgrid who advised it did not object to the proposed development.

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 2 Vegetation in non-rural areas

  1. Agreed conditions as well as the approved arborist report ensure compliance with this Chapter (relating to clearing of vegetation).

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

  1. The proposal falls within the meaning of a BASIX affected building in accordance with Sch 7 of the Environmental Planning and Assessment Regulation 2021. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The updated certificate was prepared in respect of the amended material and is BASIX Certificate Number 1359264M_04.

Other Matters

  1. The development application was publicly notified between 18 January and 17 February 2023 in accordance with Council’s notification policy. A total of 10 submissions were received and considered by Council. Three objectors attended the site view component of the s 34 conciliation to give oral evidence.

  2. 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. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware, of any jurisdictional impediment to the making of these orders.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Conclusions

  1. The Court notes:

  1. That Inner West Council, as the relevant consent authority, pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application No DA/2022/1164 to rely on the documents and plans specified in Annexure A to this judgment (the amended development application).

  1. The Court orders that:

  1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments made in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $7000 within 28 days of the date of this order.

  2. The appeal is upheld.

  3. Development Application No DA/2022/1164 for demolition of the existing structures and construction of a residential flat building comprising 47 apartments, a 2 storey basement car park and a publicly accessible open space at 37-47 Farr Street Marrickville is determined by the grant of consent subject to the conditions of consent in Annexure B.

…………………..

S Harding AC

Acting Commissioner of the Court

Annexure A (124941, pdf)

Annexure B (357217, pdf)

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Decision last updated: 22 December 2023

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