Wynn Constructions Pty Limited v Inner West Council

[2024] NSWLEC 1516

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wynn Constructions Pty Limited v Inner West Council [2024] NSWLEC 1516

Hearing dates:

Conciliation conference on 25 June 2024

Date of orders:

27 August 2024

Decision date:

27 August 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders:

(1)   Leave is granted to the Applicant to amend Development Application No. DA/2023/0614 and rely on the Further Amended Application listed at [8(1)].

(2)   The appeal is upheld.

(3)   Development consent is granted to Development Application No. DA/2023/0614 for construction of a 6-storey mixed use development containing 12 residential units, ground floor commercial/retail area above 2 levels of basement carparking, associated landscaping, and communal open space, at premises known as 172-174 Marrickville Road, Marrickville, subject to the conditions of consent in Annexure A.

(4) The Applicant agrees to pay the Respondent’s costs thrown away in the amount of $6,500 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, to be paid within 28 days of the date of these orders.

Catchwords:

APPEAL – development application – mixed use development – commercial premises with shop top housing – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38

Inner West Local Environmental Plan 2022, cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.7, 6.8, 6.9, 6.13

State Environmental Planning Policy (Housing) 2021, Ch 4, s 147

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

Category:

Principal judgment

Parties:

Wynn Constructions Pty Limited (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
G Appleby (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Maddocks (Respondent)

File Number(s):

2023/451392

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a six-storey mixed use development containing commercial premises at the ground floor, and residential apartments above, together with basement parking, at 172-174 Marrickville Road, Marrickville. The development application was lodged on 3 August 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal 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 25 June 2024 and then continued by Online Court. I presided over the conciliation conference.

3. Following 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 filed on 16 August 2024, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include an increased setback to the south-west to increase deep soil landscaping, the introduction of a car-lift to improve basement vehicular circulation, changes to the floor plans on each level, adjustments to the external walls and terraces to align them with the front boundary, and a redesign of the roof terrace.

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 a Jurisdictional Statement, which sets out the background to proceedings, the amendments to the plans, and the jurisdictional matters that the parties agree arise for consideration. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

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:

1. The site is located in the E1 Local Centre zone pursuant to the Inner West Local Environmental Plan 2022 (IWLEP), and both commercial premises and shop top housing are nominated permissible uses in the E1 zone.

2. The development application was notified between 23 August 2023 and 13 September 2023, and no submissions were received.

3. I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 20m, pursuant to cl 4.3 of the IWLEP. The proposed maximum height of 23.1m represents a contravention of 3.1m above the numerical standard. The contravention is confined to the components of the parapet, as well as the roof terrace including balustrade, stairs, planter, lift overrun and pergola. The written request dated July 2024 is lodged pursuant to cl 4.6 of the IWLEP, but erroneously relies upon the wording of cl 4.6 that applies only to development applications lodged after 1 November 2023 and contains broad statements of principle that do not relate to the development application. Nevertheless, I am satisfied that:

1. The written request dated July 2024 adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows the built form and massing arrangement to achieve compatibility in the streetscape, and the additional breach by the lift overrun allows for equitable access to the roof terrace.

2. 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.

3. Based on the Statement of Environmental Effects dated March 2023, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

4. The proposed development complies with the applicable development standard for floor space ratio, established by cl 4.4 of the IWLEP.

5. The site is mapped as having Class 5 Acid Sulfate Soils. Consistent with cl 6.1(4) of the IWLEP, a preliminary assessment of the proposed works was carried out in the Acid Sulfate Soils Assessment prepared by EI Australia and dated 28 June 2023 and concluded that an acid sulfate soils management plan is not required.

6. The development application includes earthworks for the provision of the basement level for car parking. Based on the Jurisdictional Statement and the supplementary geotechnical report prepared by EI Australia dated 26 July 2024, I have considered the matters set out in cl 6.2(3) of the IWLEP.

7. Clause 6.3 of the IWLEP concerns stormwater, and applies to the proposed development. Based on the Jurisdictional Statement and the revised Stormwater Management Plans dated 3 July 2024, I am satisfied of the matters in cl 6.3(3).

8. Clause 6.7 of the IWLEP concerns airspace and applies to the proposed development. An approval for the controlled activity was obtained from Sydney Airport, consistent with cl 6.7(2) on 17 August 2023

9. Clause 6.8 of the IWLEP concerns areas subject to aircraft noise and applies to the proposed development. Based on the Acoustical Report prepared by Koikas Acoustics dated 13 January 2022, I have considered the matters in cl 6.8(3) and I am satisfied of the matters in cl 6.8(3)(c).

10. Clause 6.9 of the IWLEP concerns design excellence and applies to the proposed development. Based on the Statement of Environmental Effects dated March 2023 and the architectural plans referred to in condition 1 of Annexure A, I have had regard to the matters in cl 6.9(4) and I consider that the development exhibits design excellence as required by cl 6.9(3).

11. Clause 6.13 of the IWLEP concerns residential accommodation in business zones, and applies to the proposed development. Based on the architectural plans referred to in condition 1 of Annexure A, I am satisfied of the matters in cl 6.13(3).

12. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 13 August 2024.

13. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Preliminary Site Investigation report prepared by EI Australia and dated 5 April 2024, the site is suitable for the proposed development.

14. The amended development application is accompanied by a statement of a qualified designer dated 18 July 2024 that verifies the design of the development, as required by s 29 of the EPA Regulation 2021.

15. Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the proposed development. Based on Appendix A of the Statement of Environmental Effects dated March 2023, I have considered the matters required to be considered by s 147(1) of the SEPP Housing.

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:

1. Inner West Council as the relevant consent authority, has agreed under section 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA/2023/0614, in accordance with the following documents which were filed with the Court on 16 August 2024:

1. Amended Architectural Plans, prepared by Loucas Architects, dates and revisions in the table below;

DA005_C	Photomontage	11 July 2024	Loucas Architects
DA006_B	3D View 02	11 July 2024	Loucas Architects
DA101-G	Basement 2 Floor Plan	1 August 2024	Loucas Architects
DA102-F	Basement 1 Floor Plan	18 July 2024	Loucas Architects
DA103-F	Ground Floor Plan	11 July 2024	Loucas Architects
DA104-E	First Floor Plan	11 July 2024	Loucas Architects
DA105-D	Second Floor Plan	11 July 2024	Loucas Architects
DA106-E	Third Floor Plan	11 July 2024	Loucas Architects
DA107-G	Fourth Floor Plan	11 July 2024	Loucas Architects
DA108-G	Fifth Floor Plan	11 July 2024	Loucas Architects
DA109-F	Roof Plan	11 July 2024	Loucas Architects
DA 201-G	Elevations 01	11 July 2024	Loucas Architects
DA 202-G	Elevations 02	11 July 2024	Loucas Architects
DA 203-H	Elevations 03	11 July 2024	Loucas Architects
DA 204-H	Elevations 04	11 July 2024	Loucas Architects
DA301-F	Section 1	11 July 2024	Loucas Architects
DA303-C	Section 03	11 July 2024	Loucas Architects
DA401_D	Shadow Analysis	11 July 2024	Loucas Architects
DA402_E	Height Plane Diagram	11 July 2024	Loucas Architects
DA601_E	GFA Plans 01	11 July 2024	Loucas Architects
DA602_E	GFA Plans 02	11 July 2024	Loucas Architects

2. NCC Assessment Report, prepared by Building Certification Services (NSW), dated 22 July 2024;

3. Design Verification Statement, prepared by Loucas Architects, dated 18 July 2024;

4. Access Report, prepared by East Coast Accessibility Pty Ltd, dated 23 July 2024 (Revision 2);

5. Acid Sulfate Soil Assessment, prepared by EI Australia, dated 28 June 2023;

6. Car Lift Operational Management Plan, prepared by Varga Traffic Planning Pty Ltd, dated 22 July 2024;

7. Revised Stormwater Management Plan, prepared by United Consulting Engineers Pty Ltd, dated 3 July 2024 (Revision B);

8. Geotechnical Investigation Report, prepared by EI Australia, dated 26 July 2024;

9. Structural Report, prepared by United Consulting Engineers Pty Ltd, dated 29 July 2024;

10. Revised Landscape Plan, prepared by Isthmus Pty Ltd, dated 18 July 2024 (Revision D);

11. Landowner’s Consent, dated 14 April 2024;

12. Performance Solution Report, prepared by East Coast Accessibility, dated 23 July 2024 (Revision 1);

13. Revised clause 4.6 Variation Statement for Height, prepared by BMA Urban, dated July 2024;

14. Arboricultural Impact Assessment Report, prepared by Jacksons Nature Works, dated 25 July 2024;

15. Preliminary Site Investigation, prepared by EI Australia, dated 5 April 2024;

16. Waste Management Plan, prepared by Loucas Architects; and

17. BASIX Certificate 1374834M_02 prepared by Max Brightwell dated 13 August 2024.

9. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application No. DA/2023/0614 and rely on the Further Amended Application listed at [8(1)].

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA/2023/0614 for construction of a 6-storey mixed use development containing 12 residential units, ground floor commercial/retail area above 2 levels of basement carparking, associated landscaping, and communal open space, at premises known as 172-174 Marrickville Road, Marrickville, subject to the conditions of consent in Annexure A.

4. The Applicant agrees to pay the Respondent’s costs thrown away in the amount of $6,500 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, to be paid within 28 days of the date of these orders.

J Gray

Commissioner of the Court

451392.23 Annexure A

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Amendments

30 August 2024 - Typo amended at [5(3)(a)]

30 August 2024 - Typographical error amended at [5(3)(a)]

Decision last updated: 30 August 2024