Warehouse on Park Pty Ltd v Inner West Council

[2022] NSWLEC 1485

Land and Environment Court

New South Wales

Medium Neutral Citation:

Warehouse on Park Pty Ltd v Inner West Council [2022] NSWLEC 1485

Hearing dates:

Conciliation conference on 26 August 2022

Date of orders:

13 September 2022

Decision date:

13 September 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent DA2021/0001 for alterations and additions to an existing building and change of use to a residential flat building including 28 apartments, with parking and associated works at 17 Federation Road, Camperdown is modified in the terms provided in Annexure “A” to this judgment.

(3) As a consequence of Order (2) above, Development Application No. DA2021/0001 is granted by the Court on 22 February 2020 is now in the form provided at Annexure “B” to this judgment.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, Div 4.8, ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2000, cll 115, 121B

Environmental Planning and Assessment Regulation 2021, cl 107

Inner West Local Environmental Plan 2022, cl 1.8A

Land and Environment Court Act 1979, s 34

Marrickville Local Environmental Plan 2011, cl 2.3

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

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

Cases Cited:

Scrap Realty Pty Limited v Botany Bay City Council (2008)166 LGERA 342; [2008] NSWLEC 333

Warehouse on Park Pty Ltd v Inner West Council [2022] NSWLEC 1095

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Warehouse on Park Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
Alistair Knox (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2022/184659

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Warehouse on Park Pty Ltd (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of its modification application, seeking amendment to a consent granted by the Court in relation to development application DA2021/0001 (the Proposed Modification) at 17 Federation Road, Camperdown (the Subject Site).

2. The Proposed Modification seeks approval of alternation and additions in relation to:

1. demolishing and rebuilding the existing northern façade of the building (which includes a recess around a lightwell that is to be retained) and the former lift room;

2. demolishing and rebuilding a portion of the western facade (only that part associated with the later annexe addition) facing Northwood Lane;

3. demolishing and rebuilding a portion of the eastern facade (only that part associated with the later annexe addition) facing Northwood Street; and

4. the sprinkler tank area on the lower ground floor (deletion of 1 motorcycle spaces not required under Marrickville Development Control Plan 2011, Part 2.10 –Parking), with minor interrelated changes to storage cages and stairs.

3. The modification application includes works relating to boundary walls which sit partly upon land at 63 Northwood Street, Camperdown.

4. In Scrap Realty Pty Limited v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at 13-21, Preston CJ confirmed that the modification power, under former s 96(2), now s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EP&A) allows for additional land to be incorporated as part of a modification application.

5. The owner of 63 Northwood Street has provided his written owner’s consent in accordance with the requirements of cl 115(1)(h) of the Environmental Planning and Assessment Regulation 2000 (the Regulation). The application is also made with the consent of the owner of the Subject Site.

6. The appeal is made under s 8.9 of the EP&A Act and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of ss 4.55(2) and 4.55(8) of the EP&A Act.

7. Pursuant to the provisions of cl 107 of the Environmental Planning and Assessment Regulation 2021 (EP&A Regulation) and the Inner West Council Community Engagement Framework, the Proposed Modification was placed on public exhibition by the Respondent between 18 July and 17 August 2022.

8. Under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the Parties’ decision if the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

9. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. consistent with the provisions of s 4.55(2) of the EP&A Act, I am satisfied that:

1. the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, noting that it is substantially the same because the proposed modifications:

1. maintain the proposed use and approved envelope of the approved development; and

2. maintain all numerical controls including floor space ratio, height, dwelling mix, and number of car spaces provided.

2. there are no conditions of consent to which the development, as approved, nor in relation to the Proposed Modification, that are imposed as a requirement of a concurrence from a relevant Minister, public authority or approval body (within the meaning of div 4.8 of the EP&A Act in relation to Integrated Development) or in accordance with the general terms of an approval proposed by the approval body; and

3. the Respondent has notified the application between 18 July and 17 August 2022 in accordance with the provisions of cl 107 of the EP&A Regulation and the Respondent’s Community Engagement Framework; and

4. no submissions were made concerning the Proposed Modification within the period prescribed by the regulations or provided by the provisions of Respondent’s Community Engagement Plan.

2. the reasons given by Commissioner Walsh for the grant of consent to the Applicant’s development application, in Warehouse on Park Pty Ltd v Inner West Council [2022] NSWLEC 1095, have been considered in relation to the Proposed Modification;

3. the Applicant has provided a design verification statement prepared by PA Studio Architects and dated 29 August 2022 in fulfilment of the requirements of State Environmental Planning Policy No 65 –Design Quality of Residential Apartment Development;

4. the Applicant’s modification application has been accompanied by BASIX certification number 1162373M_05, in fulfilment of the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

5. by virtue of the savings provisions in cl 1.8A of Inner West Local Environmental Plan 2022 (IWLEP), the provisions of Marrickville Local Environment Plan 2011 (MLEP), remain the relevant local environmental plan provisions for the purposes of determining the appeal;

6. to the extent that it is applicable to a modification application, the Parties agree, and I am satisfied, that:

1. the development as modified will be characterised as a residential flat building which is permissible with consent in accordance with the Land Use Table relating to Zone R1 General Residential under of cl 2.3 of MLEP;

2. the proposed use of the Subject Site under the Proposed Modification is compatible with the objectives of the R1 zoning of the Subject Site; and

3. the Subject Site remains zoned R1 under the provisions of IWLEP and use of the Subject Site for the purposes of a residential flat building remains permissible in that zone;

7. further, the Parties have confirmed, and I am satisfied, that the relevant considerations pursuant to the provisions of s 4.15(1) of the EP&A Act have been taken into account in relation to the Proposed Modification, including those relevant provisions of MLEP, and the application should be approved;

10. Having considered the advice of the Parties, provided above at [9], I agree that:

1. the Applicant’s Modification Application can be approved having regard to the matters in s 4.15(1) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(2) and 4.55(8) of the EP&A Act have been so satisfied.

11. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

12. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

13. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

14. The Court notes that:

1. Inner West Council as the relevant consent authority has agreed under clause 121B of the EP&A Regulation, to the Applicant amending the development application to incorporate Lower Ground Floor Plan (DA 100 Issue K dated 20 July 2022);

2. the Applicant lodged the amended application on the NSW Planning Portal on 25 August 2022; and

3. the Applicant filed the amended application with the Court on 25 August 2022.

Orders

15. The Court orders that:

1. The appeal is upheld.

2. Development Consent DA2021/0001 for alterations and additions to an existing building and change of use to a residential flat building including 28 apartments, with parking and associated works at 17 Federation Road, Camperdown is modified in the terms provided in Annexure “A” to this judgment.

3. As a consequence of Order (2) above, Development Application No. DA2021/0001 is granted by the Court on 22 February 2020 is now in the form provided at Annexure “B” to this judgment.

…………………………..

M Chilcott

Commissioner of the Court

184659.22 Annexure A (156344, pdf)

184659.22 Annexure B (395131, pdf)

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Decision last updated: 13 September 2022