Young v Inner West Council

[2022] NSWLEC 1574

Land and Environment Court

New South Wales

Medium Neutral Citation:

Young v Inner West Council [2022] NSWLEC 1574

Hearing dates:

Conciliation conference on 26 August 2022, 16 and 23 September 2022

Date of orders:

20 October 2022

Decision date:

20 October 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development Application No. DA/2020/0839, for alterations and additions, changes in hours of operation and an increase in patron capacity at 323 King Street, Newtown NSW 2042 (Lot 1 DP 177710), is determined by the grant of consent, subject to the conditions of consent as set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to retail premises – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Inner West Local Environmental Plan 2022, cl 1.8A

Marrickville Local Environmental Plan 2011, Sch 5, cll 4.3, 4.4, 5.10

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

State Environmental Planning Policy (Transport & Infrastructure) 2021, s 2.119

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Kathryn Young (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
JDK Legal (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2022/104014

Publication restriction:

No

Judgment

1. COMMISSIONER: A hotel known as ‘Websters Bar’ stands at the corner of King Street and Eliza Street, Newtown. The Applicant in these proceedings, Ms Kathryn Young, seeks consent for alterations and additions to the hotel that may be described as follows:

1. New lift and associated accessible toilets;

2. Renovated rooftop terrace area including the addition of a retractable vergola roof over the existing terrace, a lift overrun and a new metal screen and raised masonry wall to screen the lift overrun and a relocated ventilation duct;

3. National Construction Code and Building Code upgrades to the ground, first and second floors;

4. An increase in the numbers of patrons to a maximum of 471 patrons as follows: -

• ground floor: 151 patrons (previously approved at 200 patrons)

• first floor: 170 patrons (previously approved at 160 patrons),

• rooftop: 150 patrons (previously approved at 130 patrons).

5. Increase the hours of operation of the rooftop bar and terrace to Monday to Saturday from 10am to 3am and Sundays from 10am to midnight.

2. On 7 October 2020 the Applicant lodged development application DA/2020/0839 for these purposes. The development application was notified between 20 October 2020 and 10 November 2020.

3. On 13 April 2021, the development application was refused. Accordingly, the Applicant now brings this Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 25 August 2022, at which I presided.

5. Prior to the conciliation conference, the parties reached an in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application, subject to conditions.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 23 September 2022. A corrected agreement was then filed 26 September 2022.

7. 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, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

8. Under s 34(3) of the 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. The parties’ decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [22].

9. At the outset I note the appeal is in respect of a development application lodged, but not finally determined, prior to the Inner West Local Environmental Plan 2022 (Inner West LEP) coming into effect on 12 August 2022. As such, the savings provision at cl 1.8A of the Inner West LEP applies to provide that the Marrickville Local Environmental Plan 2011 (MLEP) is the relevant environmental planning instrument applicable to the development application.

10. The site is located within the B2 Local Centre zone, according to the MLEP, in which commercial premises, including retail premises such as food and drink premises comprising a pub, are permitted with consent, and where consistent with the following objectives for development in the zone:

•  To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

•  To encourage employment opportunities in accessible locations.

•  To maximise public transport patronage and encourage walking and cycling.

•  To provide housing attached to permissible non-residential uses which is of a type and scale commensurate with the accessibility and function of the centre or area.

•  To provide for spaces, at street level, which are of a size and configuration suitable for land uses which generate active street-fronts.

•  To constrain parking and reduce car use.

11. The proposed development complies with the height of building standard of 14m, in accordance with cl 4.3 of the MLEP.

12. The existing development on the site exceeds the maximum floor space ratio of 1.5:1 permitted on the site by cl 4.4 of the MLEP, and no further gross floor area is proposed.

13. The site is located within the King Street and Enmore Road Heritage Conservation Area (King Street HCA), identified in Schedule 5 of the MLEP. As such, the provisions of cl 5.10 apply to the proposal. A Statement of Heritage Impact (SHI), prepared by Cracknell & Lonergan Architects dated 31 March 2022 supports the proposal. On the basis of the Assessment of Heritage Impact at Section 7.0, I accept the conclusion of the SHI that the proposal is consistent with the objectives of heritage conservation, and with the streetscape character and key vistas within the King Street HCA, in accordance with cl 5.10 of the MLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The proposal does not seek a change of use on the site, and so s 4.6(2) of the State Environmental Planning Policy (Resilience and Hazards) 2021 does not apply to require consideration of a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

15. I have considered whether the site is likely to be contaminated. On the basis of the historical nature of the use on the site, outlined in the SHI prepared by Cracknell & Lonergan Architects, I conclude it is not, and so it is suitable for the purpose for which the development is proposed to be carried out.

State Environmental Planning Policy (Transport & Infrastructure) 2021

16. The site has a frontage to King Street, which is a classified road. As such, the provisions of State Environmental Planning Policy (Transport & Infrastructure) 2021 (Transport SEPP) apply.

17. Consent must not be granted to a development on land that has a frontage to a classified road unless the consent authority, or the Court on appeal, is satisfied that the efficiency and ongoing operation of the classified road will not be adversely affected by the development, in accordance with s 2.119 of the Transport SEPP. The proposed development does not seek to alter the existing arrangements, and no car parking facilities are proposed. Likewise, I am satisfied with respect to subs (2)(c), that the development is of a type, is appropriately designed, and includes measures at the rooftop, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. Accordingly, I accept that the efficiency and operation of the classified road will not be adversely affected by the proposed development.

Conclusion

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

19. However, it is relevant to record here that the proposal is accompanied by an Acoustic Assessment, prepared by Koikas Acoustics, dated 4 July 2022, and two letters of the same author dated 5 and 13 September 2022. The conclusions of the acoustic assessment are incorporated into a Plan of Management comprising a part of the development application. Together, the documents demonstrate conformity with Parts 2.6 and 5.3.1.4 of the Marrickville Development Control Plan 2011 (MDCP), which is a matter for consideration under s 4.15(1)(a)(iii) of the EPA Act.

20. 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.

21. The Council, as the relevant consent authority, has agreed to (pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000) the Applicant amending Development Application No. DA/2020/0839 in accordance with the amended plans and documents lodged on NSW Planning on 16 September 2022 and 24 September 2022 respectively, and filed with the Court on 26 September 2022 as described below:

1. Architectural Plans prepared by Black Line Studio:

1. DA 001, Issue C, Transmittal, dated 2 September 2022;

2. DA 006, Issue D, Site Plan, dated 2 September 2022;

3. DA 008, Issue B, FSR Calculations, dated 4 July 2022;

4. DA 012, Issue B, Existing Second Floor Plan, dated 2 September 2022;

5. DA 030, Issue B, Existing Long Section, dated 2 September 2022;

6. DA 110, Issue C, Proposed Ground Floor Plan, dated 4 July 2022;

7. DA 111, Issue C, Proposed First Floor Plan, dated 4 July 2022;

8. DA 112, Issue D, Proposed Second Floor Plan, dated 2 September 2022;

9. DA 113, Issue D, Proposed Roof Plan, dated 2 September 2022;

10. DA 114, Issue C, Proposed Second Floor Stormwater Concept Plan, dated 2 September 2022;

11. DA 115, Issue C, Proposed Roof Stormwater Concept Plan, dated 2 September 2022;

12. DA 120, Issue D, Proposed SW Elevation (Eliza St), dated 2 September 2022;

13. DA 121, Issue D, Proposed SE Elevation (King St), dated 2 September 2022;

14. DA 130, Issue D, Proposed Long Section, dated 2 September 2022;

15. DA 131, Issue D, Proposed Short Section, dated 2 September 2022;

16. DA 140, Issue A, Proposed Sliding Screen Detail, dated 2 September 2022;

17. DA 300, Issue D, Schedule of Materials and Finishes, dated 2 September 2022.

2. The following documents:

1. Acoustical Report prepared by Koikas Acoustics, dated 16 September 2022;

2. Section 8.3 Review of Determination prepared by Planning Ingenuity, dated 5 July 2022;

3. Statement of Heritage Impact prepared by Cracknell & Lonergan, dated 31 March 2022;

4. Plan of Management for Websters Bar, dated 23 September 2022.

Orders

22. The Court orders that:

1. The Appeal is upheld.

2. Development Application No. DA/2020/0839, for alterations and additions, changes in hours of operation and an increase in patron capacity at 323 King Street, Newtown NSW 2042 (Lot 1 DP 177710), is determined by the grant of consent, subject to the conditions of consent as set out in Annexure ‘A’.

…………………..

T Horton

Commissioner of the Court

**********

Annexure A

Decision last updated: 20 October 2022