Sukkar v Inner West Council - [2021] NSWLEC 1541

Land and Environment Court

New South Wales

Medium Neutral Citation: Sukkar v Inner West Council [2021] NSWLEC 1541
Hearing dates: Conciliation conference held on 16 August 2021
Date of orders: 17 September 2021
Decision date: 17 September 2021
Jurisdiction: Class 1
Before: Bish C
Decision:
The Court orders:
(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent costs thrown away in respect of the amended plans in the sum of $6,000 within 28 days of the date of this order.
(2) Appeal upheld.
(3) Development Application DA/2020/583 for demolition of existing structures and construction of a residential flat development with basement car parking at 314 Liverpool Road, Ashfield is approved subject to the conditions at Annexure “A”.

Catchwords:
DEVELOPMENT APPLICATION – residential flat building – flood management – amenity – conciliation conference – agreement between the parties – orders

Legislation Cited:
Ashfield Local Environmental Plan 2013, cll 2.3, 4.3, 4.6, 5.10, 5.21, 6.2
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cl 55
Land and Environment Court Act 1979, s 34
Roads Act 1993, s 101
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy No 55—Remediation of Land, cl 7
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Texts Cited:
Apartment Design Guide, NSW Department of Planning and Environment
Inner West Comprehensive Development Control Plan 2016

Category: Principal judgment
Parties: Tony Sukkar (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
J Smith (Applicant)
S Turner (Solicitor) (Respondent)
Solicitors:
G & S Law Group (Applicant)
Inner West Council (Respondent)

File Number(s): 2021/59370
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 2021/0583 by Inner West Council (hereafter the Council) which seeks demolition of existing structures, and construction of two residential flat buildings (RFB) on Lot 1, DP 552734 also known as 314 Liverpool Road, Ashfield (hereafter the site).
The Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court agreed to the parties’ request for a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 16 August 2021, without an onsite view and via Microsoft Teams. Three resident objectors were heard at this conciliation by telephone at the start of the conciliation.
The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs, plans and documents supporting the DA to contextualise the site.
The Council agreed for the applicant to amend the plans and documents that support the amended DA. The amended plans and documents were uploaded on 27 August 2021 to the NSW Planning Portal by Council, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). The amended plans were filed with the Court on 6 and 7 September 2021.
Based on amended plans and documents supporting the DA and agreed conditions of consent (Annexure A), the parties reached agreement as to the terms of a decision that would be acceptable to the parties. The parties agree that the contentions raised by Council and issues submitted by residents have been considered and are resolved. The decision of the parties is to uphold the appeal and grant consent to DA/2021/0583 with conditions.
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 powers under s 4.16 of the EPA Act and being satisfied, pursuant to the matters established in s 4.15(1), to grant consent to DA/2021/0583 with conditions, as described in Annexure A.
The parties identified the jurisdictional prerequisites of particular relevance in these proceedings as consistency with the: State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy (Infrastructure) 2007 (SEPP 2007); Ashfield Local Environmental Plan 2013 (ALEP); and the Inner West Comprehensive Development Control Plan 2016 (IWCDCP).
The parties agree that the proposed development complies with the relevant provisions of SEPP 55. The Council considers that based on the continued use of the site as residential, the site is deemed suitable for the proposed development. The parties are satisfied that the requirements of cl 7 of the SEPP 55 are addressed.
The parties agree that the proposed development complies with the relevant provisions of the SEPP 65. The parties agree that the proposed development, as amended, provides appropriate design quality and amenity, and has had regard to the requirements of SEPP 65 and the Apartment Design Guide (ADG), specifically with regards to addressing amenity. The amended DA relies on an amended Design Verification Certificate. The parties agree that the relevant requirements of the SEPP 65 are satisfied, and the relevant contentions are resolved.
The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate, relevant to the proposed development, as amended, is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.
The site fronts to Liverpool Road, which is a classified road, and subject to the provisions of s 101 of the Roads Act 1993. Based on the agreed development and conditions of consent, the Council is satisfied that the requirements for safe and practicable vehicular access is provided from both frontages of the site.
The provisions of the ALEP apply to the proposed development on this site. The site is zoned across the B4 – Mixed Use and R3 – Medium Density Zones, pursuant to cl 2.3 of the ALEP. The parties agree that Building A is within the B4 zone and Building B is within the R3 zone. The proposed development is permissible and consistent with the respective objectives of the zones. The DA is supported by a Statement of Environmental Effects (SEE) and other relevant planning related reports, which considers the suitability of the proposed development on the site in context of the surrounding area.
The parties agree that the relevant provisions of the ALEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal, however proposed Building A does exceed the numeric requirement of cl 4.3 (height standard). All other relevant numeric development standards are satisfied.
It is accepted by the parties that a cl 4.6 written request seeking a variation of the height standard (cl 4.3) is required to grant consent to the DA, pursuant to cl 4.6 of the ALEP, and that the Court must be satisfied to grant consent to the DA.
The written request for (height) variation explains that the maximum height of the proposed development (Building A) exceeds the ALEP (cl 4.3) height standard of 12.5m. This exceedance in height is primarily limited to a portion of the lift overrun (on proposed Building A). The amended DA exceeds the height standard by 0.25m.
The cl 4.6 (height) written request explains that the site has undulating topography and the lift overrun is required to facilitate access to the rooftop communal area. The elements of the proposed building (A) that exceeds the height standard does not result in a development that is out of character with the local area and is not perceived adversely from the streetscape, particularly due to the orientation of the building (A) on the site. The proposed development responds to the existing sloping topography. The non-compliant height element does not impact amenity adversely for adjoining residents, and there are sufficient environmental planning grounds for a variation in height, including the provision of communal access for all occupants and efficient utilisation of the site.
According to the written request, there are no adverse impacts to visual bulk, solar access or privacy as a result of the non-compliance with the (height) development standard for the proposed development. The proposed development is consistent with the zone objectives and relevant development standard (cl 4.3). The portion of the non-compliant building form is not readily discernible in the context of the site and will not appear incompatible with existing and future building heights in the surrounding area.
The proposed height of the development satisfies the objectives of the respective zones and the height standard (cl 4.3 of the ALEP). As the non-compliant portion of the proposed development are in character with the local area, no adverse amenity impacts result, the relevant height objectives are satisfied, compliance with the height standard would be unreasonable.
The (cl 4.6) written request considers that a variation of the height development standard, pursuant to cl 4.3 of the ALEP is therefore satisfied, and flexibility of the standard is justified. There is no public benefit in maintaining the height standard on the site, as the proposed development is consistent with the character, bulk and scale of the surrounding context.
Having reviewed the (cl 4.6) written request, I agree that the written request seeking variation of the height standard addresses the requirements of cl 4.6(3) of the ALEP, by describing sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. Therefore, cl 4.6(4)(a)(i) of the ALEP is satisfied.
The proposed development, as described to the Court, is consistent with the objectives of the zones (cl 2.3, R3 and R4 zones) and the height (cl 4.3) standard, established in the ALEP. The breach in height is limited to the portion of the lift overrun that will not cause undue concern to (existing and future) surrounding residents, the streetscape, or those residing beyond the site. The height non-compliance does not result in adverse impact to the residents of the proposed development, adjoining properties or inconsistent with the character of the local area. The proposed development is therefore in the public interest, satisfying cl 4.6(4)(a)(ii).
I accept the cl 4.6 written request’s explanation that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the standard for the proposed development. Therefore, variation of the height development standard is not inconsistent with cll 4.6(4)(b) or (5) of the EPA Act.
I am satisfied that the requirements of cl 4.6 of the ALEP have been addressed and that a variation in the height standard, as provided in cl 4.3, should be granted.
The proposed development is located adjacent to the Miller Avenue Heritage Conservation Area (HCA) (described in Schedule 5 in the ALEP), although it is agreed that the site itself is not subject to heritage listings. Pursuant to cl 5.10 of the ALEP, the the effect of the proposed development on the heritage significance of the HCA must be assessed. The parties agree, after review of the Heritage Impact Statement ( October 2020), that the requirements of cl 5.10 are satisfied. The issues raised by residents are also addressed with respect to the potential heritage impact to their properties.
The site is subject to flooding, mapped as flood prone, and therefore subject to consideration of cl 5.21 of the ALEP. The amended DA is supported by a Flood Report/s, most recently dated 20 August 2021, which the parties agree is relevant to the proposed development. The parties agree that the proposed habitable floor levels are above the designated flood planning level (FPL), there are no changes to flood risk offsite and the appropriate stormwater management structures are designed to manage flows within, across and beyond the site. The parties explain that the proposed development has considered the provisions of cl 5.21, which are satisfied. I am also satisfied that the proposed development would satisfy the recently repealed cl 6.2 of the ALEP, which the parties do not require consideration in this appeal.
Based on the amended plans and supporting documents to the DA, the contentions that relate to the relevant controls of the IWCDCP are achieved to the satisfaction of the parties. The proposed development was publicly notified in accordance with the IWCDCP. Submissions received by Council during the notification period have been considered in reaching the agreement of the parties.
Based on the amended plans and supporting documents to the DA, including a (cl 4.6) written request for variation of the height development standard, the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties. The parties also explain that there are no jurisdictional impediments to the making of the agreement or for the Court making the orders, as sought.
The parties advise the Court that the amended plans and documents that support the amended DA have been considered in the context of the proposed development on the site and surrounding area. The contentions raised by Council, issues raised by objectors and all merit/jurisdictional requirements are addressed to the satisfaction of the parties.
Based on the evidence before me, I am satisfied that there are no jurisdictional impediments to this agreement and that consent to DA/2021/0583 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.
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.
The Court notes:

That the Inner West Council, as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application (DA/2021/0583).

That the Inner West Council has uploaded the amended application on the NSW planning portal on 27 August 2021.

That the applicant has subsequently filed the amended application with the Court on 6 and 7 September 2021.

The Court orders:

Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent costs thrown away in respect of the amended plans in the sum of $6,000 within 28 days of the date of this order.

Appeal upheld.

Development Application DA/2020/583 for demolition of existing structures and construction of a residential flat development with basement car parking at 314 Liverpool Road, Ashfield is approved subject to the conditions at Annexure “A”.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (356838, pdf)

**********

Decision last updated: 17 September 2021

Medium Neutral Citation:	Sukkar v Inner West Council [2021] NSWLEC 1541
Hearing dates:	Conciliation conference held on 16 August 2021
Date of orders:	17 September 2021
Decision date:	17 September 2021
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent costs thrown away in respect of the amended plans in the sum of $6,000 within 28 days of the date of this order. (2) Appeal upheld. (3) Development Application DA/2020/583 for demolition of existing structures and construction of a residential flat development with basement car parking at 314 Liverpool Road, Ashfield is approved subject to the conditions at Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – flood management – amenity – conciliation conference – agreement between the parties – orders
Legislation Cited:	Ashfield Local Environmental Plan 2013, cll 2.3, 4.3, 4.6, 5.10, 5.21, 6.2 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Roads Act 1993, s 101 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide, NSW Department of Planning and Environment Inner West Comprehensive Development Control Plan 2016
Category:	Principal judgment
Parties:	Tony Sukkar (Applicant) Inner West Council (Respondent)
Representation:	Counsel: J Smith (Applicant) S Turner (Solicitor) (Respondent) Solicitors: G & S Law Group (Applicant) Inner West Council (Respondent)
File Number(s):	2021/59370
Publication restriction:	No