William Assets Pty Ltd v Inner West Council

[2021] NSWLEC 1201

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

William Assets Pty Ltd v Inner West Council [2021] NSWLEC 1201

Hearing dates:

Conciliation conference on 23 February 2021 and 11 March 2021

Date of orders:

27 April 2021

Decision date:

27 April 2021

Jurisdiction:

Class 1

Before:

Rappoport AC

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend Development Application No. DA/2020/0233 and rely upon the following amended plans and documents, which are referenced in Condition 1 at Annexure ‘A’.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is 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.

(3) The appeal is upheld.

(4) Development Application number DA/2020/0233 for erection of a three storey boarding house with basement parking and associated works on land identified as Lot 55 Sec B in Deposited Plan 1663, Lot 56 Sec B in Deposited Plan 1663, Lot 57 Sec B in Deposited Plan 1663, Cnr Lot 58 Sec B in Deposited Plan 1663, and known as 16-18 William Street, Leichhardt, is approved in accordance with the conditions included at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between parties – orders – conditions – construction

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15(3)

Environmental Planning and Assessment Regulation 2000, Sch 1 cl 2A

Land and Environment Court Act 1979, s 34(3)

Leichhardt Local Environmental Plan 2013

State Environment Planning Policy (Building Sustainability: BASIX) 2004

State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 26, 27, 28, 29, 30, 30A

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

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

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cl 3

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

William Assets Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)

File Number(s):

2020/329267

Publication restriction:

No

Judgment

1. COMMISSIONER: William Assets Pty Ltd is the Applicant and is the owner of a two-storey residential flat building at 16-18 William Street Leichhardt NSW 2040 to which consent was refused by Inner West Council (the Respondent) in response to Development Application DA/2020/0233 (the Application) for the demolition of the existing building, erection of a three-storey boarding house containing 25 boarding rooms with basement parking, and associated works comprised of the following:

• 25 boarding rooms.

• 1 manager’s room.

• 13 car parking spaces including 2 disabled car parking spaces.

• 6 bicycle parking spaces.

• 6 motorcycle parking spaces.

• Storage areas.

• Indoor communal area and outdoor communal area.

• Divert council stormwater pipeline.

• Removal and replacement of two street trees.

2. The appeal, brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) is regarding 69 conditions of consent and additional advisory notes dated 16 February 2021 – refer to Annexure A.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 February 2021. I presided over the conciliation conference.

4. There was no on-site view since the parties had already reached an agreement based on amended plans. The parties advised me that they had reached agreement, under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties. The terms of the agreement required the preparation of amended plans.

5. The parties asked me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of consent annexed to the s34 agreement.

6. 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.

7. I formed an opinion of satisfaction that each of the matters to which the Court must give regard have been satisfactorily addressed in accordance with the following;

1. The parties have reached agreement as to the terms of a decision in the proceedings that are acceptable to the parties, which is reflected in the s34 agreement filed with the Court.

2. The Court may dispose of the proceedings in accordance with the decision.

3. The Parties have agreed that the decision is within the Court’s jurisdiction.

8. The Application, as amended through the course of the proceedings, seeks approval for a three-storey boarding house with 25 rooms including a basement carpark and associated works.

9. I am required to have regard to submissions made by members of the public in respect of the Application pursuant to s 4.15(1)(d) of the EPA Act.

10. Submissions made in response to the Application were filed with the Court and six speakers gave oral evidence at the s34 conciliation conference.

11. As noted above, development for the purposes of boarding houses is permissible with consent by operation of cll 26, 27(1) and 28 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH).

12. The accessibility area limits imposed by cl 27(2) do not apply, as the subject site is zoned R1, not R2.

13. Clause 29(1) of SEPPARH sets out a “must not refuse” floor space ratio (FSR) control, if the proposed development has a FSR less than 1:1 (being the 0.5:1 FSR permitted by cl 4.4 of the Leichhardt Local Environmental Plan 2013 (LEP) plus an additional 0.5:1 afforded by cl 29(1)(c)(i) of SEPPARH), the consent authority must not refuse the Application on grounds of density or scale. The proposed development has an FSR of 1.1:1.

14. Clause 29(2) sets out further “must not refuse” controls:

1. building height – the LEP does not provide for a height control;

2. landscaped area – to be compatible with the streetscape: Council has undertaken a merit assessment, including the revised landscape plans referenced in the conditions of consent and the submissions made, and are satisfied that the control is met;

3. solar access – requires a minimum three hours of direct sunlight to the common room between 9am and 3pm in midwinter: a suite of solar diagrams have been prepared and the proposal complies;

4. private open space:

1. an area of at least 20sqm, with a minimum dimension of 3m: this is provided adjacent to the common room at the upper level;

2. an area of at least 8sqm with a minimum dimension of 2.5m for the manager: this is provided adjacent to the managers room at ground floor (South East corner of site).

5. parking: at least 12 spaces for the boarding rooms; and not more than one space for the manager;

6. The proposal complies, noting that the standard is a “must not refuse” standard rather than a standard which calls for refusal if not met;

7. accommodation size – not less than 12sqm (excluding kitchen and bathroom) for the single room, and 16sqm (excluding kitchen and bathroom) for double rooms. The proposal complies.

15. Clause 30(1) sets further development standards which must be met:

1. one communal living room where there are 5 or more boarding rooms: a communal room is provided on the upper floor. The proposal complies;

2. no boarding room to have floor area greater than 25sqm (excluding kitchen and bathroom). The proposal complies;

3. no boarding room to be occupied by more than two lodgers. Rooms are designated single or double, and this restriction is enforced in the Plan of Management referred to in the conditions of consent;

4. adequate bathroom and kitchen facilities. The proposal complies as each room has bathroom and kitchen facilities;

5. managers room required for boarding house with 20 or more lodgers. Managers room provided at ground floor in the South East corner of the building;

6. five bicycle and five motorcycle spaces required (one for every five boarding rooms). six bicycle spaces and six motorcycle spaces are provided.

16. Clause 30A provides that a consent authority must not grant consent unless it has taken into consideration whether the design of the development is compatible with the character of the local area.

17. The jurisdictional test in cl 30A is not whether the development is compatible with character, or whether the consent authority is satisfied that the development is compatible with character, but rather whether this question has been considered.

18. Under cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (Bundle p 121), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated, subject to its status of contamination, and is satisfied that the land is or will be made to be suitable for the development. The site has a history of residential use.

19. Under State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation), the proposal is a BASIX affected development, containing a BASIX affected building. Clause 2A(1) of Sch 1 to the Regulation requires a development application for any BASIX affected development to be accompanied by a BASIX Certificate or BASIX certificates for the development. The proposal is a BASIX affected development as defined in cl 3(1) of the Regulation. The Application was accompanied by a BASIX Certificate.

20. Pursuant to cl 3 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) and the Sydney Harbour Catchment Map, the site is located within the Sydney Harbour Catchment. However, the site is not located within the Foreshores and Waterways Area or a wetlands protection area and is not identified as a strategic foreshore site or a heritage item listed under the SREP. The site is also not located in the vicinity of a heritage item listed under the SREP.

21. Whilst the LEP remains a relevant consideration, there is no matter in the LEP which gives rise to a jurisdictional question. Permissibility and principal development standards of height and FSR are set by SEPPARH, albeit by reference to the LEP, and the proposal complies.

22. The Court orders that;

1. The Applicant is granted leave to amend Development Application No. DA/2020/0233 and rely upon the following amended plans and documents, which are referenced in Condition 1 at Annexure ‘A’.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is 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.

3. The appeal is upheld.

4. Development Application number DA/2020/0233 for erection of a three storey boarding house with basement parking and associated works on land identified as Lot 55 Sec B in Deposited Plan 1663, Lot 56 Sec B in Deposited Plan 1663, Lot 57 Sec B in Deposited Plan 1663, Cnr Lot 58 Sec B in Deposited Plan 1663, and known as 16-18 William Street, Leichhardt, is approved in accordance with the conditions included at Annexure ‘A’.

……………………….

P Rappoport

Acting Commissioner of the Court

Annexure A (304971, pdf)

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Amendments

05 May 2021 - Pursuant to the Uniform Civil Procedure Rules 2005 r 36.16(3B), by the request of the parties, the Court amends Annexure A to insert the correct references to certain architectural sheets.

Decision last updated: 05 May 2021