The Trustee for Novabal trading as Novabal Pty Ltd v Inner West Council

[2021] NSWLEC 1523

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Trustee for Novabal trading as Novabal Pty Ltd v Inner West Council [2021] NSWLEC 1523

Hearing dates:

Conciliation conference on 6 September 2021

Date of orders:

10 September 2021

Decision date:

10 September 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent is granted to DA/2020/0751 for the part demolition of existing buildings to construct a mixed use development comprising 4 commercial/retail premises and 15 boarding rooms at 9-11 Beattie Street, Balmain subject to conditions contained in Annexure ‘A’.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, Sch 1

Land and Environment Court Act 1979, s 34

Leichhardt Local Environmental Plan 2013

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 29, 30, 30A, Div 3

State Environmental Planning Policy (Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

The Trustee for Novabal trading as Novabal Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)

File Number(s):

2021/24019

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council’s refusal of Development Application DA/2020/0751 (the development) for part demolition/construction of a mixed use development comprising 4 commercial/retail premises and 25 boarding rooms at 9-11 Beattie Street Balmain NSW (site).

2. On 6 September 2021, the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. Under 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. In this case, the parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application on a conditional basis. Before this function can be exercised, there are jurisdictional prerequisites that must be satisfied.

4. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional submission relying on the evidence contained in the Court file and the relevant statutory framework.

5. Subject to the proposed conditions of consent I am satisfied on the evidence before me that the amended DA complies with the relevant development standards and controls under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), the Leichhardt Local Environmental Plan 2013 and generally complies with Leichhardt Development Control Plan 2013. In that regard I note the following:

State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH)

6. The DA is located within the B2 - Local Centre Zone. Therefore, SEPP ARH applies pursuant to cl 26.

7. The relevant clauses of the SEPP ARH are contained within Div 3 – Boarding Houses.

8. Clauses 29 and 30 of SEPP ARH sets out a number of development standards that apply to the DA. Clause 29 sets out the standards that cannot be used to refuse consent whilst cl 30 refers to the standards that must be satisfied in order for the consent authority to grant development consent.

9. The parties have agreed, and I accept that the amended DA complies with the development standards under SEPP ARH for the following reasons:

• Building height (cl 29(2)(a)): A maximum building height standard has not been provided for the site, however the proposed building height has been derived with regard to local context and character.

• Landscaped area (cl 29(2)(b)): In a B2 Local Centre zone, the landscape treatment of the front setback is compatible with the streetscape and with adjoining premises.

• Solar access (cl 29(2)(c): The DA includes a communal living area and communal open space on the uppermost level which is positioned so that solar access to these spaces complies with the SEPP ARH requirements for a minimum of 3 hours of direct sunlight between 9am and 3pm in mid-winter (see also Drawings 403 & 404).

• Private open space (cl 29(2)(d)): The amended architectural plans comply with the requirements for private open space which requires an area of at least 20 square metres with a minimum dimension of 3 metres to be provided for the use of the lodgers.

• Parking (cl 29(2)(e)): At least 0.5 parking spaces are to be provided for each boarding room. The DA (as amended) proposes 15 boarding rooms which requires 7.5 parking spaces. However, no parking is proposed given the constraints of the site.

• Accommodation size (cll 29(2)(f) and 29(3)): Each boarding room has a gross floor area (GFA) of at least 12 square metres if the boarding room is intended to be used by a single lodger or 16 square metres in any other case. The boarding room areas have been noted on the amended architectural plans (see Drawings 601 & 602. Further, each boarding room has been provided with private kitchen and bathroom facilities.

• Communal Open Space (cl 30(1)(a)): The DA has more than 5 boarding rooms and one communal living room therefore cl 30(1)(a) of the SEPP ARH is satisfied.

• GFA of boarding rooms (cl 30(1)(b)): No boarding room has a GFA excluding any area used for the purposes of private kitchen or bathroom facilities) of more than 25 square metres.

• Number of Lodgers (cl 30(1)(c)): The boarding rooms have been designed to accommodate no more than 2 lodgers.

• Bathroom and kitchen facilities (cl 30(1)(d)): Each boarding room is provided with private bathroom and kitchen facilities.

• On site boarding manager (cl 30(1)(e)): The boarding house proposes more than 20 lodgers therefore a boarding room has been provided for the boarding house manager. Condition 8 requires room 302 as the boarding house manager’s room.

• Ground Floor fronting street not to be used for residential purposes (cl 30(1)(g)): The site is located within a B2 – Local Centre zone. The proposed ground floor is frontage is for 3 x commercial / retail use.

• Bicycle and motorcycle (cl 30(1)(h)): At least one parking space is provided and one for a motorcycle for every 5 boarding rooms. The DA makes provision for a total of 12 bicycle spaces and 5 motorcycle spaces.

• Character of Local Area (cl 30A): The DA is compatible with the character of the local area based on the evidence before me.

State Environmental Planning Policy No 55—Remediation of Land (SEPP 55)

10. Clause 7 of SEPP 55 requires a consent authority to consider the contamination and remediation of land when determining a development application.

11. A Detailed Site Investigation Report and Remediation Action Plan has been provided in accordance with SEPP 55. Based on the reports I accept that the site can be made suitable for the proposed development, subject to the remediation works being undertaken as recommended and as required by the agreed conditions of consent. Accordingly, I accept that cl7 of SEPP 55 has been addressed.

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

12. An amended BASIX Certificate no 1126503M_03 has been provided by the applicant to accompany the development application and thereby satisfies the requirement in Sch 1 of the Environmental Planning and Assessment Regulation 2000.

Notification and submissions from objectors

13. I understand that the DA was notified to surrounding residents from 29 September 2020 to 12 November 2020. A total of 32 submissions were received. A copy of the submissions from resident objectors are found in the List of Objectors filed 1 September 2021.

14. The amended DA was also renotified to the surrounding residents who had previously made a submission. Four new submissions were received. A copy of these further submissions from resident objectors are found in the List of Objectors filed 1 September 2021. I am not required to undertake a merit assessment of the amended DA however, I understand that the parties are satisfied that the concerns raised by the surrounding residents have been sufficiently addressed through the amended application which forms the basis of the s34 agreement.

15. In particular, the parties are satisfied the amended application does not result in adverse acoustic and visual privacy impacts to neighbouring properties. There is a shortfall of 7.5 car spaces for the boarding house. However, the site does not have the benefit of existing off-street parking as there are two existing buildings presenting to Beattie Street. There is no rear or side road access. To comply with the parking requirements, one needs to consider a number of options which may include the demolition of one or both of the buildings or have no residential component. The proposed upgrade works to both buildings, and specifically the cottage (and the well which is located at the rear of the cottage) will improve the heritage significance of these buildings and provide for a sympathetic design response. The residents have been provided with the plans and advised of parties’ position.

16. Accordingly, 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.

17. The Court notes:

1. That Inner West Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA/2020/0751.

2. That Inner West Council has uploaded the amended development application and BASIX Certificate on the NSW planning portal on 26 August 2021.

3. That the applicant has filed the amended development application with the Court on 7 September 2021.

18. The Court orders that:

1. The appeal is upheld.

2. Development Consent is granted to DA/2020/0751 for the part demolition of existing buildings to construct a mixed use development comprising 4 commercial/retail premises and 15 boarding rooms at 9-11 Beattie Street, Balmain subject to conditions contained in Annexure ‘A’.

………………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (315107, pdf)

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Amendments

14 September 2021 - Correction to typographical error at [9].

22 September 2021 - Correction to error on cover sheet

Decision last updated: 22 September 2021