Shepherd Street Pty Ltd v Inner West Council

[2024] NSWLEC 1200

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shepherd Street Pty Ltd v Inner West Council [2024] NSWLEC 1200

Hearing dates:

Conciliation conference held on 12 April 2024

Date of orders:

19 April 2024

Decision date:

19 April 2024

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA/2023/0991 seeking adaptation of the three existing brick warehouses and addition of two new structures for light-industrial and creative industries at Lot 4 Deposited Plan 1162801, also known as 89 Fitzroy Street, Marrickville is determined by the grant of consent, and subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – adaptation of existing and construction of new warehouses for light industrial and creative purpose - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7

Land and Environment Court Act 1979, s 34

Water Management Act 2000, s 90

Environmental Planning and Assessment Regulation 2021, ss 23

Inner West Local Environment Plan 2022, cll 2.3, 5.21, 6.1, 6.9

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 3.1

Texts Cited:

Inner West Community Participation Strategy 2022

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Shepherd Street Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

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

Solicitors:
Mills Oakley
Inner West Council

File Number(s):

2024/76819

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA/2023/0991 by Inner West Council (the Council) seeking adaptation of three existing warehouses and construction of two new structures for the purpose of light industrial and creative industries use at Lot 4 Deposited Plan 1162801, also known as 89 Fitzroy Street, Marrickville (hereafter the site).

Background

2. Development Application DA/2023/0991 (the DA) was lodged with Council on 20 December 2023, with no submissions received during the notification period. The DA was referred to WaterNSW, as an integrated development, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The DA seeks to amend a consent granted for Development Application DA/2021/0726, which was approved by Council on 6 December 2021. Key amendments sought by the DA relate to a change in use, reducing the basement parking, amending building and services design, and landscaping.

4. The Applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the EPA Act.

5. The Court agreed to a conciliation conference, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), commencing without an onsite view, before myself as Duty Commissioner.

6. Based on the DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the Council has undertaken the appropriate merit assessment.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, in consideration of s 4.15(1), to grant consent to Development Application DA/2023/0991, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. The proposed excavation for the basement could potentially intercept groundwater and require dewatering, thereby engaging the Water Management Act 2000 (WMA Act). The proposed development relies on a tanked basement design and the conditions of consent reference the WaterNSW General Terms of Approval relating to any requirement for dewatering.

9. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the DA. The following jurisdictional requirements have been considered and are satisfied:

1. Inner West Local Environment Plan 2022 (IWLEP):

1. Pursuant to cl 2.3 of the IWLEP, the proposed development is situated over land zoned E4 General Industrial. The proposed development, as described to the Court, is permissible with consent in this zone and addresses the relevant objectives of the E4 zone.

2. The amended application is supported by plans and documents, that sufficiently address the relevant objectives, aims, standards and provisions of the IWLEP.

3. The site is located within a flood planning area, subject to minor flooding from overland flows, pursuant to cl 5.21 of the IWLEP. The site is dissected by a Sydney Water channel, used for the drainage of stormwater. The DA is supported by a Flood Risk Management Statement, prepared by Acor Consultants, dated 18 June 2021. The requirements of cl 5.21 are sufficiently satisfied by the proposed development and supported by the agreed conditions of consent.

4. The site is located on land classified as part Class 2 and Class 5 Acid Sulfate Soils (ASS), pursuant to cl 6.1 of the IWLEP. The DA is supported by an ASS Management Plan, prepared by JK Geotechnics, dated 30 August 2021. The requirements of cl 6.1 are sufficiently satisfied by the Plan and agreed conditions of consent.

5. The requirement for design excellence, as described in cl 6.9 of the IWLEP are relevant in consideration of the proposed alteration to Building 1, that exceeds 14m. The DA relies on the Statement of Environmental Effects, prepared by The Planning Studio, dated 14 November 2023. The proposed development is assessed as follows:

1. seeks to retain most of the form for Building 1, sufficiently addressing the requirements of cl 6.9(4)(a) and (b).

2. there is no change to the existing view corridors or landmarks, and no assessed adverse impact to solar access. The requirements of cl 6.9(4)(c) and (d) are addressed.

3. there are no assessed non-compliances with the Marrickville Development Control Plan 2011, addressing cl 6.9(4)(e).

4. the proposed change of use is consistent with the locality, the heritage features of the existing buildings are retained, and the site will be activated through improved pedestrian access and building layout. The requirements of cl 6.9(4)(f) are addressed.

2. State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Buildings):

1. The value of the proposed development engages consideration of the SEPP Buildings, pursuant to s 3.1(1)(a). The requirements of s 3.2 are addressed by the agreed conditions of consent.

3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity):

1. The site is located within the Inner West Government area, and subject to the requirements of Ch 2 of the SEPP Biodiversity. The parties agree that the DA does not seek any clearing of vegetation in this non-rural area.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site has historically been used for industry. The DA relies on a: Hazardous Buildings Survey, prepared by JK Environments, dated 28 October 2021; and Remediation Action Plan, prepared by JK Environments, dated 31 August 2021. The contamination status of the site is appropriately considered and is capable of being made suitable for the intended purpose, satisfying the relevant requirements of s 4.6 of the SEPP Resilience.

5. Marrickville Development Control Plan 2011 (MDCP):

1. The relevant requirements of the MDCP are generally complied with based on the amended plans, supporting documents to the DA and the conditions of consent.

2. The original application was publicly notified in accordance with the MDCP and the Inner West Community Participation Strategy 2022. There were no submissions received during the notification period.

10. Pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Applicant has satisfied the Court with the provision of consent from the landowner relevant to the site. All proposed works are explained to the Court as being within the site.

Grant of consent

11. Based on the amended plans and supporting documents to the DA, together with a jurisdictional assessment and expert report, the parties confirm to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

12. I am satisfied, based on the evidence before me that Development Application DA/2023/0991 should be determined by the grant of consent.

13. As the parties' agreement 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.

14. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/2023/0991 seeking adaptation of the three existing brick warehouses and addition of two new structures for light-industrial and creative industries at Lot 4 Deposited Plan 1162801, also known as 89 Fitzroy Street, Marrickville is determined by the grant of consent, and subject to the conditions set out in Annexure A.

S Bish

Commissioner of the Court

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Annexure A

Decision last updated: 19 April 2024