Emag Apartments Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2021-12-22

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA/2021/0263 (DA) by Inner West Council (Council). The DA seeks consent for demolition of certain existing structures, and alterations and additions to an existing hotel to create a mixed-use development comprising a pub and a boarding house at 127-133 New Canterbury Road, Lewisham, legally known as Lots 2-5 in DP1543 and Lots 3-5 in DP10989 (site).
The Court arranged a conciliation conference between the parties, under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 22 December 2021. I presided over the conciliation conference.
After more time was allowed, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
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 the function under s 4.16 of the EPA Act to grant consent to the development application.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings (including through a jurisdictional statement dated 22 December 2021) and explained how they have been or could be satisfied. Below I give consideration to the jurisdictional issues, mindful of this statement.

State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55)

Mindful of cl 7 of SEPP 55, I have given consideration to whether the land is contaminated. A preliminary site investigation (PSI) has been prepared for the site (Stage 1 Preliminary Site Investigation (Rev 0), prepared by Alliance Geotechnical dated 22 August 2018). I accept the advice of the parties that it confirms that the site can be made suitable for the proposed use. The recommendations of the PSI are embodied in proposed consent conditions.

State Environmental Planning Policy (Infrastructure) 2007

The site is located with a frontage to a classified road (New Canterbury Road) and as such, is subject to certain provisions of the State Environmental Planning Policy (Infrastructure) 2007:

In regard to cl 101(2)(a), vehicular access is provided by a road other than the classified road.
In regard to cl 101(2)(b), I accept the advice of the parties that the safety, efficiency and ongoing operation of the classified road would not be adversely affected by the proposal in regard to the relevant matters.
In regard to cll 101(2)(c) and 102(3), the development is assumed to be sensitive to traffic noise, and I accept the advice of the parties that it includes appropriate measures to ameliorate potential traffic noise, as identified in the PKA Acoustic Report dated 8 February 2019, and endorsed by the West & Associates Review dated 23 March 2021.

State Environmental Planning Policy (Affordable Rental Housing) 2009 and State Environmental Planning Policy (Housing) 2021

State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) was repealed following the recent commencement of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). However, savings provisions (Schedule 7 cl (2)(a) of SEPP Housing) provide that the former provisions of the repealed instrument (SEPP ARH) continue to apply to development applications which, like this one, have been made, but not yet determined upon the commencement of SEPP Housing. Below jurisdictionally relevant provisions of SEPP ARH are considered:

In regard to cl 30(1) and standards for boarding houses, I accept the advice of the parties and am satisfied that a communal living space has been provided on level 1, all rooms are less than 25m2, no boarding room is proposed to be occupied by more than two lodgers, each room will have a private kitchen and bathroom facilities, a boarding room has been provided for an onsite manager, the ground floor will be used primarily as a pub and at least one bicycle and motorcycle parking space will be provided for every 5 rooms.
In regard to cl 30A, I have taken into consideration whether the design of the development is compatible with the character of the local area.

Marrickville Local Environmental Plan 2011 (MLEP)

Below jurisdictionally relevant matters under MLEP are considered:

The site is zoned B2 Local Centre. I have considered the zone objectives and note that boarding houses are permissible with consent in the zone. I accept the agreed advice of the parties that the pub portion of the proposed development falls within the innominate use category within the B2 zone and as such is permissible with consent in the B2 zone.
The site is subject to a maximum building height of 17m pursuant to cl 4.3. A maximum building height of 16.8m is proposed.
The site is subject to a maximum floor space ratio (FSR) of 2.2:1 pursuant to cl 4.4. A maximum FSR of 2.40:1 is proposed, contravening the standard. This contravention is addressed separately below.
Part of the site is listed as a local heritage item in Schedule 5 (No. I56 "Huntsbury Hotel, including interiors" (item)). The site is not located in a heritage conservation area or in the vicinity of other heritage items. Under cl 5.10(4) before granting consent, I must consider the effect of the proposed development on the heritage significance of the item. In this instance, the parties submit that the requirements have been satisfied, mindful of the findings of a Heritage Impact Statement (prepared by Weir Philips dated March 2021) and the inclusions of a Conservation Management Strategy prepared by GBA Heritage in regard to the proposal. I accept the parties' advice that the Court can be satisfied that the application (as amended) addresses cl 5.10 of the MLEP. In particular, and in accordance with the advice of the parties, I am satisfied that the application will have a positive and acceptable impact on the item by supporting the existing use of the pub, reinstating its historical accommodation type use, and providing for alterations and additions which are consistent with the Conservation Management Strategy prepared for the item site prepared by GBA Heritage.
I have considered the matters requiring consideration at cl 6.2(3) relating to earthworks, noting a number of proposed consent conditions of relevance.
The site is mapped with the indicator "Biodiversity" on the Natural Resource - Biodiversity Map_003 in MLEP, triggering the provisions of cl 6.4. I have considered the matters listed at cl 6.4(3), and I accept the advice of the parties (mindful of the Statement of Environmental Effects prepared by Weir Philips dated 30 March 2021) that given the physical state of the land (devoid of vegetation) I should be satisfied that the provisions of cl 6.4(4) are addressed.
The site is affected by cl 6.5 of MLEP which his concerned with aircraft noise. I have considered the matters at cl 6.5(3)(a)-(b) and note that the development would result in the creation of additional dwellings and an increase in the number of people affected by aircraft noise. I accept the advice of the parties that the matters at cl 6.5(3)(c) are satisfied having regard to Statement of Environmental Effects prepared by Weir Philips, the PKA Acoustic Report dated 8 February 2019, endorsed by the West & Associates Review dated 23 March 2021.
In regard to cl 6.15, the site is located within a B2 Local Centre zone and does not propose any part of the boarding house portion of the proposed development to be located at the street level.

Other provisions of s 4.15(1) of the EPA Act

The parties have provided commentary evaluating the proposal against SEPP Housing. While this policy does not apply to the proposal, I have had regard to this instrument.
The parties have provided me with advice in regard to the provisions of Marrickville Development Control Plan 2011. I have considered this advice and in turn believe the requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met.
I accept the parties' submissions that the requirements of cll 92 and 93 of the Environmental Planning and Assessment Regulation 2000, to the extent they are relevant, have been taken into account and addressed.
I also accept the parties' submissions, as included in the jurisdictional statement dated 22 December 2021, and generally (in person), in regard to the attention to provisions relating to likely impact of the proposal and site suitability.
The parties advise the proposal was notified in accordance with requirements and one objecting submission was received in regard to the proposal. Regard has been had to this submission and the proposal's Plan of Management would address the issue raised according to the parties.

Floor space ratio contravention

The site is subject to a maximum FSR of 2.2:1 pursuant to cl 4.4. A maximum FSR of 2.40:1 is proposed, contravening the standard.
The applicant has lodged a written request pursuant to cl 4.6(3) of MLEP, prepared by Weir Phillips dated 25 November 2021 (written request), seeking approval notwithstanding the contravention. The parties agree that the written request is well founded and that the facultative powers of cl 4.6 of MLEP should be deployed in this case. I have reviewed the written request and I am also satisfied that it has adequately addressed the matters required to be demonstrated under the relevant provisions, as explained below.
The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary in the circumstances of the case (cl 4.6(3)(a) of MLEP). It does so mindful of Preston CJ's finding in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request adopts the first "Wehbe way" (among others), successfully showing how, otherwise, the development, achieves the objectives of the development standard (cl 4.4(1) of MLEP). I note that the first listed objective is explanatory only (in the sense of Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 (see [49]). Otherwise, the written request is convincing in its demonstration the other two nominated objectives are achieved, in that: (1) the contravention would not result in any noticeable change in regard to the desired future character of the area and would not substantively alter the perceived external bulk of the building, and (2) the proposal minimises adverse amenity impacts on adjoining properties and the public domain, notwithstanding the contravention.
The written request also demonstrates there are sufficient environmental planning grounds to justify contravening the development standard. It does this by noting the scale of the breach (under 10%). More importantly it effectively argues a series of design aspects demonstrating that the element of the design seen, in a practical sense, as effecting the breach, has good alignment with a number of the objects of the EPA Act (at s 1.3).
For a contravention to be allowed there is also a requirement for the Court to be directly satisfied that the proposal development is in the public interest because it is consistent with the objectives of the contravened development standard and, in this case, the applicable B2 Local Centre zone (cl 4.6(4)(a)(ii)). I am so satisfied. In regard to the objectives of the contravened (FSR) development standard, my reasoning aligns with that of the written request (see [18]). I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the B2 Local Centre zone, because:

The pub operation clearly aligns with the first zone objective of serving (certain) needs of local people and visitors
The proposal would increase local employment opportunities in this accessible location
The accessible location (proximity to bus and train services) encourages public transport patronage and walking and cycling
This form of housing is commensurate with the accessibility and function of the centre
The proposal, including its glazed shopfronts, can be seen as activating the existing streetscape
The proposal brings, given its location, good prospects for reduced car dependence.

I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of MLEP but note that I have considered the matters in cl 4.6(5) in coming to my conclusions in regard to the contravention. I find nothing of significance arises in regard to those matters.
The states of satisfaction required by cl 4.6 of MLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR standard.

Conclusion

Based on the material outlined above, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. It follows that I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. I note that I have had no direct regard to the merits of the application in coming to this position.
In coming to this position, certain amendments were made to the application originally filed. In that regard, the Court notes the following advice from the parties:

The Applicant has amended the application with the consent of the Respondent Council.
The Applicant has uploaded the amended application onto the NSW planning portal on 20 December 2021 comprising all the documents and plans set out in the attached conditions of approval in Annexure A hereto.
The Applicant has filed the amended application with the Court on 20 December 2021.
The Respondent agrees to publish a notice of the development consent granted on its website in accordance with clause 124 of the Environmental Planning and Assessment Regulation 2000 within 14 days of the date of these orders.

Orders

The orders of the Court are: 1. The applicant is to pay the respondents costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $10,200.00. 2. The request pursuant to clause 4.6 of the Marrickville Local Environmental Plan to vary the development standard for Floor Space Ratio contained in clause 4.4 thereof, as prepared by Weir Phillips dated 25 November 2021, is upheld. 3. The appeal is upheld. 4. Development Consent is granted to DA/2021/0263 for demolition of existing structures as well as alterations and additions to an existing hotel to create a mixed-use development comprising a pub and a boarding house, at 127-133 New Canterbury Road, Lewisham NSW 2049, subject to the conditions set out in Annexure 'A'.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 January 2022

(2007) 156 LGERA 446

(2019) 243 LGERA 338

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Cases Cited (4)