ZCMC Investments Pty Ltd v Inner West Council

Case •

[2024] NSWLEC 1406

•

17 July 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: ZCMC Investments Pty Ltd v Inner West Council [2024] NSWLEC 1406
Hearing dates: Conciliation conference on 13 May 2024
Date of orders: 17 July 2024
Decision date: 17 July 2024
Jurisdiction:Class 1
Before: Washington C
Decision:

The Court orders:

(1) The Applicant shall pay the Respondent’s costs thrown away by reason of the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $7,000 within 28 days of the date of this Order.

(2) The Applicant’s written request, pursuant to cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), seeking to vary the development standard for minimum lot size set out in cl 4.1 of the IWLEP, is upheld.

(3) The Applicant’s written request, pursuant to cl 4.6 of the IWLEP, seeking to vary the development standard for landscaped areas for residential accommodation in Zone R1, set out in cl 4.3C(a) of the IWLEP, is upheld.

(4) The Applicant’s written request, pursuant to cl 4.6 of the IWLEP, seeking to vary the development standard for site coverage, set out in cl 4.3C(b) of the IWLEP, is upheld.

(5) The Applicant’s written request, pursuant to cl 4.6 of the IWLEP, seeking to vary the development standard for floor space ratio set out in cl 4.4 of the IWLEP, is upheld.

(6) The appeal is upheld.

(7) Development Application DA/2023/0653 for alterations and additions to an existing building containing 10 apartments, and conversion to provide four attached dwellings, car parking, landscaping and Torrens title subdivision, at premises known as 20 Gladstone Street, Balmain, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – residential flat building – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Inner West Local Environmental Plan 2022, cll 4.1, 4.3C, 4.4, 4.6, 5.10, 6.3

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

Category:Principal judgment
Parties: ZCMC Investments Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
R Dunstan (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)
File Number(s): 2023/362577
Publication restriction: No

Judgment

  1. COMMISSIONER: These Class 1 proceedings arise from the deemed refusal, by Inner West Council, of development application DA/2023/0653. This application seeks consent for alterations and additions to an existing residential flat building containing ten dwellings to provide four 3 bedroom attached dwellings, car parking, landscaping and Torrens title subdivision at 20 Gladstone Street, Balmain, Lot 33 in DP229121. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

  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 13 May 2024. I presided over the conciliation conference.

  3. After the conciliation conference, the parties reached agreement as to the 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.

  4. As part of this agreement, the respondent has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the applicant amending the development application to reflect the outcome of the conciliation process.

  5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how these have been satisfied, and from this I note the following points.

  6. The application was made with the written consent of the owner of the subject site.

  7. The development application was appropriately notified between 30 August and 20 September 2023, during which time seven submissions were received. Additionally, two neighbouring residents made oral submissions at the commencement of the conciliation. The parties submit, and I accept, that the matters raised in these submissions have been considered and adequately addressed in the assessment of this application. This includes, amongst other things, the issues of privacy raised by both speakers, which have been resolved through amendments to the built form and fenestration.

  8. The development application is accompanied by four BASIX certificates that relate to each new dwelling in the development as amended, pursuant to s 27 of the EPA Reg.

  9. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it will be suitable for the intended use. Based on the parties’ submission and the information contained in the Statement of Environmental Effects prepared by Planning Ingenuity dated 4 August 2023, I accept that the land has historically been used for residential purposes, is not likely to be contaminated and is suitable for the proposed development with no further remediation or investigation necessary.

  10. Pursuant to the Inner West Local Environmental Plan 2022 (IWLEP), the site is zoned R1 General Residential, within which development for the purposes of attached dwellings is permissible with consent. The parties submit, and I accept, that the development is consistent with the relevant objectives of the zone.

  11. No maximum height of buildings is specified for this site in the IWLEP.

  12. The IWLEP Pt 4 sets principal development standards to which the proposed development must comply. However, pursuant to cl 4.6(3) of the IWLEP, development consent may be granted for development that contravenes a development standard, subject to the consent authority being satisfied the applicant has demonstrated that:

  1. compliance with the development standard is unreasonable or unnecessary in the circumstances, and

  2. there are sufficient environmental planning grounds to justify the contravention of the development standard.

  1. Pursuant to IWLEP cl 4.6, the applicant has submitted requests to contravene the following development standards:

  1. Clause 4.1 Minimum subdivision lot size

  2. Clause 4.3C(a) Landscaped areas

  3. Clause 4.3C(b) Site coverage

  4. Clause 4.4 Floor space ratio

  5. I will deal with each request in turn.

  1. Clause 4.1 of the IWLEP sets a development standard for minimum subdivision lot size for this site of 200sqm. The proposed development exceeds this minimum for Lots 2, 3 and 4, proposing the following lot sizes:

  • 255.77sqm for Lot 1 (complies)

  • 104.1sqm for Lot 2 (shortfall of 47.95%)

  • 110.53sqm for Lot 3 (shortfall of 44.74%)

  • 157.23sqm for Lot 4 (shortfall of 21.39%)

  1. Pursuant to cl 4.6(3) of the IWLEP, the applicants have submitted a written request prepared by Weir Philips Heritage and Planning and dated 20 May 2024 (the cl 4.1 written request), and from this document I am satisfied that:

  1. The applicant has demonstrated that compliance with the minimum subdivision lot size development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R1 General Residential Zone and the Minimum lot size development standard, notwithstanding the non-compliance.

  2. The cl 4.1 written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

  1. The non-compliance results from the adaptive reuse of the existing structure, which restricts the site configuration and division of lots but meets the principles of Ecologically Sustainable Design (ESD).

  2. The non-compliance also results from the adoption of a regular rectilinear subdivision pattern, reflective of the lot pattern of the surrounding locality.

  1. The contravention is therefore justified by the implementation of ESD principles through the adaptive reuse upgrade of the existing building to current building standards, as well as the consistency with the lot pattern of the locality.

  2. The cl 4.1 written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

  1. Clause 4.3C(a) of the IWLEP deals with Landscaped areas for residential accommodation in zone R1 (the landscaped areas development standard). Each of the proposed lots is required to provide a minimum landscaped area of 20% of the site area. Lots 1 and 2 meet this standard, with areas of 22.6% and 21% respectively, but Lots 3 and 4 have a shortfall, with areas of 18% and 4.9% respectively. This represents a variation of 10% or 1.2m2 for Lot 3, and 76%, or 23.75m2 for Lot 4.

  2. Pursuant to cl 4.6(3) of the IWLEP, the applicants have submitted a second written request prepared by Weir Philips Heritage and Planning and dated 20 May 2024 (the cl 4.3C(a) written request), and from this document I am satisfied that:

  1. The cl 4.3C(a) written request demonstrates that compliance with the landscaped areas development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R1 General Residential Zone and the landscaped areas development standard, notwithstanding the non-compliance.

  2. The cl 4.3C(a) written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

  1. The existing site does not provide sufficient landscaped area under cl 4.3C(a), and the proposed development, despite being adaptive re-use, will increase the landscaped area of the overall development site substantially, from 35m2 to 107.8m2.

  2. The development utilises this increased landscaped area to improve the streetscape presentation and aesthetics of the development to form a more sympathetic relationship to the Heritage Conservation Area (HCA) and the locality.

  1. The contravention is therefore justified by the significant increase in landscaped area in line with ESD principles, and the improved aesthetic contribution to the HCA and locality.

  2. The cl 4.3C(a) written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

  1. Clause 4.3C(b) of the IWLEP sets a maximum site coverage for the site of 60%. Lots 2 and 3 exceed this, with a proposed site coverage of 6.6.% (64.75m2) and 66% (73m2) respectively.

  2. Pursuant to cl 4.6(3) of the IWLEP, the applicants have submitted a third written request prepared by Weir Philips Heritage and Planning and dated 20 May 2024 (the cl 4.3C(b) written request), and from this document I am satisfied that:

  1. The cl 4.3C(b) written request demonstrates that compliance with the site coverage development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R1 General Residential Zone and the site coverage development standard, notwithstanding the non-compliance.

  2. The cl 4.3C(b) written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the contravention is the result of the development working with the existing building footprint, and when considered overall, the site coverage for the development site as a whole complies at 48% site coverage.

  3. The cl 4.3C(b) written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

  1. Clause 4.4 of the IWLEP deals with Floor Space Ratio (FSR) and specifies a maximum FSR for the newly created lots as set out in Figure 1, which also details the extent of non-compliance of the proposed Lots 2, 3 and 4.

Lot

Site area

Max FSR permitted

Proposed GFA

Proposed FSR

Lot 1

255.77m2

0.9:1 (230.193m2)

139.3

0.55:1

Lot 2

104.1m2

1.0:1 (104.1m2)

119.2

1.15:1

Lot 3

110.53m2

1.0:1 (110.53m2)

133.3

1.2:1

Lot 4

157.23m2

0.9:1 (141.507m2)

161.5

1.03:1

Figure 1- permitted and proposed FSR

  1. Pursuant to cl 4.6(3) of the IWLEP, the applicants have submitted a fourth written request prepared by Weir Philips Heritage and Planning and dated 20 May 2024 (the cl 4.4 written request), and from this document I am satisfied that:

  1. The cl 4.4 written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R1 General Residential Zone and the FSR development standard, notwithstanding the non-compliance.

  2. The cl 4.4 written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the contravention is the result of:

  1. The development working with the existing building structure,

  2. The adoption of a regular rectilinear subdivision pattern, as opposed to an irregular subdivision pattern reflective of the areas allocated for car parking spaces, and

  3. The impact of the site topography on Lot 4 that results in space allocated at lower ground floor level for the entry.

  1. The contravention is therefore justified by the FSR being the result of the adaptive reuse of an existing building and the subsequent site constraints, and also that the contravention does not result in any unacceptable amenity impacts on either the proposed development or neighbouring residents.

  2. The cl 4.4 written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

  1. The site is not identified as a heritage item, however it is located within the Balmain East Heritage Conservation Area (HCA). Pursuant to IWLEP cl 5.10, based on the parties’ submission and the information contained in the Heritage Impact Statement prepared by Weir Philips Heritage and Planning dated June 2023, I accept that the proposed development will have a positive, and therefore acceptable, impact on the HCA due to the improvements in streetscape and built form.

  2. IWLEP cl 6.3 deals with stormwater management. Based on the amended stormwater concept plans by Goldfish & Bay dated 11 June 2024, the amended architectural plans and the parties’ submissions, I accept that the development is designed to maximise the use of water permeable surfaces, and avoids a significant adverse impact of stormwater runoff on adjoining properties, as per the requirements of cl 6.3(3).

  3. For these reasons, 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.

  4. As the parties’ decision is one 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.

  5. The Court notes:

  1. Inner West Council, as the relevant consent authority, has agreed, under cl 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA/2023/0653 in accordance with the following documents:

  1. Revision E Architectural Plans, prepared by Christopher Jordan Architecture and Design, dated 28 May 2024.

  2. Waste Management Plan, prepared by Christopher Jordan Architecture and Design, dated June 2023.

  3. Arboricultural Impact Assessment, prepared by Aborlogix Pty Ltd, dated 12 February 2024.

  4. Landscape Plans, prepared by Discount Landscape Plans, dated 17 June 2024.

  5. Clause 4.6 Variation for Floor Space Ratio, prepared by Weir Phillips Heritage and Planning, dated 20 May 2024.

  6. Clause 4.6 Variation for Landscaped Areas, prepared by Weir Phillips Heritage and Planning, dated 20 May 2024.

  7. Clause 4.6 Variation for Minimum Subdivision Lot Size, prepared by Weir Phillips Heritage and Planning, dated 20 May 2024.

  8. Clause 4.6 Variation for Site Coverage, prepared by Weir Phillips Heritage and Planning, dated 20 May 2024.

  9. BASIX Certificates A497377_03, A500545_03, A500553_02, A500556_03, prepared by Christopher Jordan, dated 20 May 2024.

  1. The Court orders:

  1. The Applicant shall pay the Respondent’s costs thrown away by reason of the amendment of the Development Application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $7,000 within 28 days of the date of this Order.

  2. The Applicant’s written request, pursuant to cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), seeking to vary the development standard for minimum lot size set out in cl 4.1 of the IWLEP is upheld.

  3. The Applicant’s written request, pursuant to cl 4.6 of the IWLEP, seeking to vary the development standard for landscaped areas for residential accommodation in Zone R1 set out in cl 4.3C(a) of the IWLEP, is upheld.

  4. The Applicant’s written request, pursuant to cl 4.6 of the IWLEP, seeking to vary the development standard for site coverage set out in cl 4.3C(b) of the IWLEP, is upheld.

  5. The Applicant’s written request, pursuant to cl 4.6 of the IWLEP, seeking to vary the development standard for floor space ratio set out in cl 4.4 of the IWLEP, is upheld.

  6. The appeal is upheld.

  7. Development Application DA/2023/0653 for alterations and additions to an existing building containing 10 apartments, and conversion to provide four attached dwellings, car parking, landscaping and Torrens title subdivision, at premises known as 20 Gladstone Street, Balmain, is determined by the grant of consent subject to the conditions at Annexure A.

E Washington

Commissioner of the Court

**********

Annexure A

Decision last updated: 17 July 2024

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