Workman v Inner West Council

[2022] NSWLEC 1248

Land and Environment Court

New South Wales

Medium Neutral Citation:

Workman v Inner West Council [2022] NSWLEC 1248

Hearing dates:

Conciliation conference on 28 March 2022 and 7 April 2022.

Date of orders:

16 May 2022

Decision date:

16 May 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The written request pursuant to clause 4.6 of Marrickville Local Environmental Plan 2013 to contravene the development standard for floor space ratio contained in the clause 4.4 thereof, as prepared by The Planning Hub dated 14 April 2022, is upheld.

(3) Development Application No. DA/2020/0707, as amended, for the adaptive reuse of existing warehouse building as a dwelling, with basement on land legally comprising of the allotment described as Lots 66 and 67 in DP3752, known as 13-15 Northwood Street, Camperdown is granted subject to the conditions set out in Annexure “A”.

(4) The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the Application in the agreed amount of $7,000.00 within 28 days of the date of these orders.

Catchwords:

APPEAL – development application – adaptive re-use of warehouse building as a dwelling – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Land and Environment Court Act 1979, s 34

Marrickville Local Environmental Plan 2011 cll 4.3, 4.4, 4.6, 6.2

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

Category:

Principal judgment

Parties:

Oliver Workman (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
G Christmas (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Inner West Council (Respondent)

File Number(s):

2021/325186

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the adaptive re-use of an existing warehouse building at 13-15 Northwood Street, Camperdown as a dwelling house. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 28 March 2022 and continued on 7 April 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 10 May 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The amendments made in the amended development application include retaining the roof line of the warehouse and its presentation to the street, reducing the footprint of the basement so that it is moved away from the boundaries, ensuring that street trees are retained, and making some changes to the boundary wall to protect the privacy of the neighbours.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed Jurisdictional Statement that sets out the matters about which the Court, exercising the functions of the consent authority, must be satisfied prior to granting development consent.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R4 Low Density Residential zone in which the site is located, pursuant to the Marrickville Local Environmental Plan 2011 (MLEP 2011).

• I am satisfied that consent should be granted notwithstanding the contravention of the floor space ratio (FSR) development standard. The development standard establishes a maximum FSR for a dwelling house of 0.7:1, pursuant to cl 4.4(2A) of the MLEP 2011. The proposed development has a FSR of 0.96:1, which represents a breach of the maximum FSR by 37%. The FSR of the existing building is 0.99:1. I am satisfied that the written request, lodged pursuant to cl 4.6 of the MLEP 2011, adequately establishes sufficient environmental planning grounds that justify the breach in the FSR development standard by demonstrating that the breach arises from the retention of the existing warehouse which was built in the 1930s/40s and contributes positively to the streetscape, and is the preferred outcome for the site (in lieu of a new building with a compliant FSR). I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as the proposed development is an adaptive re-use of an existing warehouse building. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The proposed development complies with the height development standard that applies to the site, pursuant to cl 4.3 of the MLEP 2011.

• Based on the Geotechnical report prepared by JK Geotechnics dated 22 June 2021 and the letter prepared by Cantilever Structural Engineers dated 17 March 2022, I have considered the matters set out in cl 6.2(3) of the MLEP 2011.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and consistent with the requirements of cl 4.6(2), I have considered a report specifying the findings of a preliminary investigation by EI Australia dated 25 March 2022. Based on that report, I am satisfied that the land is suitable for residential development.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. Inner West Council as the relevant consent authority has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application Number DA/2021/0707 filed with the Court on 16 November 2021 with the plans listed in Condition 1 of the Conditions of Consent provided as Annexure ‘A’ to this agreement.

2. The applicant uploaded the amended development application on the NSW planning portal on 9 May 2022, reference number PAN-116647.

3. The applicant filed the amended application with the Court on 10 May 2022.

Orders

9. The Court orders that:

1. The appeal is upheld.

2. The written request pursuant to clause 4.6 of Marrickville Local Environmental Plan 2011 to contravene the development standard for floor space ratio contained in the clause 4.4 thereof, as prepared by The Planning Hub dated 14 April 2022, is upheld.

3. Development Application No. DA/2021/0707, as amended, for the adaptive reuse of existing warehouse building as a dwelling, with basement on land legally comprising of the allotment described as Lots 66 and 67 in DP3752, known as 13-15 Northwood Street, Camperdown is granted subject to the conditions set out in Annexure “A”.

4. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the Application in the agreed amount of $7,000.00 within 28 days of the date of these orders.

……………………….

Joanne Gray

Commissioner of the Court

(Annexure A) (494429, pdf)

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Decision last updated: 16 May 2022