Hunter's Hill Ventures Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2022-10-27

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Inner West Council (Council) of development application 2021/0967 (DA).
The DA, as amended, seeks consent for substantial demolition of existing structures and construction of a three storey mixed use building comprising ground floor retail tenancy and a first floor entertainment facility incorporating a rooftop bar. The site is 308 Darling Street, Balmain.
In regard to amendments, I note that Council, as the relevant consent authority, has agreed (under cl 55 of the Environment Planning and Assessment Regulation 2000) to the Applicant further amending the DA in accordance with the following amended documents lodged on the NSW Planning Portal on 26 October 2022 and filed with the Court on 26 October 2022:
Plan of Management - Entertainment Facility Planning Ingenuity 25 October 2022
Clause 4.6 Written Request 18 October 2022
Structural Report Partridge 29 September 2022
External Elevations & Finishes, Revision D ArtMadeArchitects 25 October 2022

Conciliation and agreement between the parties

The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 27 October 2022. I presided over the conciliation conference.
Prior to the conciliation conference, the parties had come to an 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 consent to the DA subject to conditions.
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.

Jurisdiction

The parties' decision involves the Court exercising the consent authority 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 assisted here with a jurisdictional statement provided to the Court on 27 October 2022. In regard to jurisdiction and having regard to this statement, I find as follows:

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

Pursuant to cl 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The parties advise that the proposal is a redevelopment of an existing two storey building built in the 1960s. Until as recently as 2021, the building was occupied by commercial tenancies on both floors. The proposed works seek to retain the existing floor slab. I accept the advice of the parties that, considering the site history, contamination is unlikely and suitable for the proposed commercial use is demonstrated.

Leichhardt Local Environmental Plan 2013 (LLEP)

I note that Inner West Local Environmental Plan 2022 (IWLEP) commenced on 12 August 2022 and applies to the site. However, the savings and transitional provisions at cl 1.8A indicate: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.
The DA was lodged in October 2021, consequently, LLEP continues to apply.
The site is zoned B2 Local Centre under the LLEP. The proposal can be characterised as a mixed-use development containing "commercial premises" and an "entertainment facility" which are permitted with consent in the B2 Zone. I have had regard to the zone objectives as required under cl 2.3(2). I also note that demolition is permissible with consent under cl 2.7.
The proposal would breach the floor space ratio development standard at cl 4.4, which I give consideration to below.
As the site falls within The Valley Heritage Conservation Area (HCA), under cl 5.10(4), there is a need for me to consider the effect of the proposed development on the heritage significance of the area concerned. I have done so mindful of the heritage report included in the Class 1 Application filed on 25 February 2022 (Tab 11).
The site is classified as Class 5 acid sulfate soils land, under cl 6.1. I accept the advice of the parties that no further investigation is required here given that there are no proposed works within 500m of adjacent Class 1, 2, 3, or 4 land that is below 5m Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.
The DA includes minimal earthworks. Nevertheless, I have considered the matters listed at subcl 6.2(3)(a)-(h).
In regard to stormwater management, development consent must not be granted unless the consent authority is satisfied in relation to the matters listed at subcl 6.4(3)(a)-(c). I accept the advice of the parties that the stormwater plans which accompany the DA, as amended, incorporate appropriate stormwater management strategies, mindful of these provisions. The stormwater plans and the conditions of consent (see Annexure A Condition 13A and 13B) require that the site either drain to the rear or to front of the site into the Council's street drainage system. I note the site is quite small and narrow and accordingly there are impracticalities to providing stormwater retention for use as an alternative supply to mains water. However, the conditions do provide some flexibility in providing alternative water re-use options. The stormwater management scheme has been designed in such a way that avoids adverse runoff to adjoining properties.

Contravention of FSR development standard

Clause 4.4 of LLEP prescribes a maximum FSR for the site of 1:1. The proposed FSR is 1.65:1.
The applicant has lodged a written request pursuant to cl 4.6(3) of LLEP, prepared by Planning Ingenuity dated 18 October 2022 (written request), seeking approval notwithstanding the contravention. In the filing of the agreement between the parties under s 34(3) of the LEC Act, the parties are agreeing that the written request is well founded and that the facultative powers of cl 4.6 of LLEP 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. This is explained below.
The written request demonstrates that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case (cl 4.6(3)(a) of LLEP). 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", successfully showing how, otherwise, the development achieves the relevant objective of the development standard. The relevant objective of cl 4.4 of LLEP (applying to non-residential development) is as follows: to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale.
The written request points out the bulk, form, and scale particulars of the proposal in context. The streetscape presentation at ground and first floor level, through its alignment with heritage characteristics of the existing streetscape, I accept is in harmony with the setting. Reference is also made to a high level of compliance with applicable controls in Leichardt Development Control Plan 2013 (LDCP). These arguments adequately demonstrate that the relevant objective to cl 4.4 has been achieved notwithstanding the contravention.
The written request also demonstrates there are sufficient environmental planning grounds to justify contravening the development standard. It does this through a number of arguments, mostly on the point that the proposal at this FSR is consistent in form and scale with the desired future character. If the scale of the development is a point of attention, the written request notes the fact of the prevailing two storey development in the locality, as a matter for consideration (mindful of Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115). It also notes there are parallel provisions within LLEP which allow an FSR of 1.5:1 for developments proposing active street frontage but which include residential accommodation. When the form of the development is considered, attention is drawn to the involvement of heritage experts in the finalisation of the streetscape presentation. It is also noted that the additional floor space (ie beyond the numerical standard) is not able to be readily perceived from the streetscape. Together these grounds, argued in the written request, are sufficient to justify contravening the FSR.
For a contravention to be allowed, there is also a requirement for the Court to be directly satisfied that the proposed 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 development standard, I adopt the reasoning outlined in the written request.
The zone objectives are as follows (I have numbered them for reference convenience): 1. 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. 2. To encourage employment opportunities in accessible locations. 3. To maximise public transport patronage and encourage walking and cycling. 4. To ensure that development is appropriately designed to minimise amenity impacts. 5. To allow appropriate residential uses to support the vitality of local centres. 6. To ensure that uses support the viability of local centres. 7. To provide a mixture of compatible land uses. 8. To reinforce and enhance the role, function and identity of local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres. 9. To integrate suitable business, office, residential, retail and other development in accessible locations.
The proposal is consistent with the first two zone objectives and the sixth, eighth and ninth zone objectives because of the intended commercial and entertainment uses, of themselves. The accessible location of the site (including proximity to very regular bus services) encourages public transport patronage and walking and cycling, consistent with the third zone objective. I accept the advice of the parties that the amendments to the original DA, plan of management and proposed conditions ensure the proposal is consistent with the fourth and seventh zone objectives. The fifth zone objective is not relevant.
The above demonstrates that I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the contravened FSR standard and the B2 zone.
I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of LLEP 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 LLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of this particular element of the building height standard.

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

In regard to s 4.15(1)(a)(ii) of the EPA Act, I have considered IWLEP and find that nothing of substance turns on this instrument.
The Class 1 application works through LDCP provisions (Tab 4), jurisdictionally nothing turns on this policy instrument. The requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met.
The parties advise the proposal was notified in accordance with requirements and objecting submissions were received in regard to the proposal. Copies of submissions were provided to the Court, I also heard from one objector during a site inspection. In the parties' jurisdictional statement, summary points were provided on how the objecting submissions were taken into consideration. I note the following advice from the parties on this matter: (a) the Amended DA is supported by an acoustic assessment and an updated Plan of Management. Conditions of consent are proposed that requires compliance with the recommendations in the noise reports. The updated Plan of Management also details processes relating to orderly exit of patrons from the premises and security arrangements. These measures will assist to ensure that any amenity impacts caused by the proposed development are minimised. (b) The Amended DA is supported by a social impact assessment report. That report concludes that the proposed development will contribute to the revitalisation of Balmain and improve the site presentation to the street. (c) The design of the façade of the proposed building has been carefully considered by the parties' heritage experts who agree that the design will contribute positively to the heritage conservation area. (d) The agreed conditions between the parties includes matters relating to hours of operation, entry / exit, noise, amenity and plan of management.
I have taken into consideration objecting submission in accordance with the requirement of s 4.15(1)(d) of the EPA Act.
I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.

Conclusion

Based on the above details, 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. 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.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.
The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.
The Court orders: 1. The Applicant's written request under clause 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP), prepared by Planning Ingenuity and dated 18 October 2022, to vary the development standard for floor space ratio required by clause 4.4 of the LLEP is upheld. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA2021/0967, for the substantial demolition of the existing building and construction of a three (3) storey mixed-use development, comprising ground floor commercial premises, first floor entertainment facility, and second floor rooftop bar, on land legally described as Lot 1 in DP86525 and known as 308 Darling Street, Balmain NSW 2041, subject to the conditions at Annexure A. Peter Walsh Commissioner of the Court

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: 02 November 2022

(2007) 156 LGERA 446

At a glance

Court

Decision date

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Judgment (10 paragraphs)

Parties

Cases Cited (3)