[2018] NSWLEC 118
Makram Constructions Pty Limited v North Sydney Council (2002) 119 LGERA 42
Source
Original judgment source is linked above.
Catchwords
[2018] NSWLEC 118
Makram Constructions Pty Limited v North Sydney Council (2002) 119 LGERA 42
Judgment (3 paragraphs)
[1]
The Applicant has filed the plans and other documents in the table above with the Court on 3 November 2022 and 26 April 2023.
[2]
Orders:
The Court orders that:
1. The written requests under clause 4.6 of the Leichhardt Local Environmental Plan 2013 are upheld.
2. The appeal is upheld.
3. Development Application No. DA2022/0192, as amended, at 14C Jane Street, Balmain (Lot 13 DP 1041574) is determined by grant of consent, subject to the conditions of consent contained at Annexure A.
[3]
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: 21 June 2023
Parties
Applicant/Plaintiff:
James
Respondent/Defendant:
Inner West Council
Cases Cited (8)
Justification of the Contravention of the Floor Space Ratio development standard
The Proposed Development proposes a Floor Space Ratio (FSR) of 0.9.1:1 on the Site. Clause 4.4(2B)(b)(iv) of the LLEP and the Floor Space Ratio map permits a maximum FSR of 0.7:1 accordingly, the Proposed Development contravenes the FSR development standard. The Applicant relies on a written request prepared by The Planning Studio dated September 2022 filed with the Class 1 Application, to justify this contravention pursuant to clause 4.6 of the LLEP (Written Request). The Written Request concludes on pages 7 to 9 that compliance with the FSR development standard is unreasonable or unnecessary having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118. Sufficient environmental planning grounds are demonstrated to justify the contravention of the FSR development standard on pages 9 and 10 in that the particular circumstance of the proposal seeking to conserve and enhance an existing heritage item already exceeding the FSR control and the proposal results in a net reduction of floor space on the Site and will not result in any additional bulk or scale associated with the building.
The parties also consider that the Written Request establishes on pages 11 and 12 that the Proposed Development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the R1 zone in which the development is proposed to be carried out. The concurrence of the Planning Secretary is not required having regard to Planning Circular PS 20-002 dated 5 May 2020.
The Court is satisfied that the applicant's Written Request seeking to justify the contravention of the development standard in cl 4.4 of the LLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.
Heritage consideration pursuant to cl 5.10 of the LLEP
The Site is identified as a local heritage item, being the "Former convent and fence, including interiors" as listed in Sch 5 of the LLEP (item I249). The Site is also located in the Balmain East Heritage Conservation Area listed in Sch 5 of the LLEP.
Clause 5.10(4) of the LLEP requires that "the consent authority, must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned". The Applicant relies on a Heritage Impact Statement and an Addendum to that Statement filed with the Class 1 Application and the parties have considered the effect of the Proposed Development on the heritage significance of the Site as well as the Balmain East Heritage Conservation Area.
Traffic Controls
Part of the Amended Application includes changes to resolve contention 1 (Traffic & Parking) of the Statement of Facts and Contentions filed by the Respondent.
The experts agreed in the Traffic Joint Expert Report filed 20 April 2023 at paragraphs 3.1.4 and 5.1.1-5.1.7 that a modification of parking restrictions along Fawcett Street will be required to facilitate satisfactory vehicle access and egress from the Site. It was agreed between the experts that this could be achieved by a 12.6 metre "No Parking" zone, for which consent is sought.
A "No Parking" zone is to be indicated by way of installation of signage which is a prescribed traffic control device pursuant to the RT Act. The installation and display of prescribed traffic control device is controlled by the provisions of s 122 of the RT Act which provides as follows:
122 Appropriate authority for the purposes of this Division
(STM Act, s 51)
For the purposes of this Division, a person has appropriate authority to install or display (or to interfere with, alter or remove) a prescribed traffic control device if -
(a) the person is a public authority that has been directed by Transport for NSW under Part 2A, Division 3 of Schedule 1 to the Transport Administration Act 1988 to install or display (or to interfere with, alter or remove) the device, or
(b) the person is authorised in writing by Transport for NSW to install or display (or to interfere with, alter or remove) the device, or
(c) the person is permitted or required to remove the device by or under section 124.
On 31 October 2011, Council was delegated certain powers by the Road and Maritime Services (RMS) (and now Transport for NSW (TfNSW)) in respect of certain aspects of the control of traffic on local roads (Delegation).
Pursuant to the Delegation and Sch 4, s 41 Savings of the RT Act, Council is taken to be a delegate of TfNSW under s 273 of the RT Act of the function to authorise the installation or display of a "no-parking" sign under s 122 of that Act.
The Delegation is subject to the limitations set out in Schedule 4 of the Delegation. The Council must not exercise the function to authorise the installation of a "no parking" sign unless if follows the unanimous advice of the Traffic Committee, or if this does not occur, Council has notified the Commissioner of Police and TfNSW and must not exercise the function for 14 days after the notification.
The Court can exercise the functions of Council under the RT Act, pursuant to s 39(2) of the LEC Act. The question raised by the Respondent is whether the exercise of those functions is subject to the same limitations as set out in the Delegation: Makram Constructions Pty Limited v North Sydney Council (2002) 119 LGERA 42; [2002] NSWLEC 4 ("Makram") at [50] - [54] and Tahany Pty Limited v Waverley Council [2022] NSWLEC 1363 ("Tahany") at [29].
Section 39(2) of the LEC Act reads as follows:
39 Powers of Court on appeals
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
Makram, obiter remarks by Bignold J at [53] and [54]:
"53. Rather, in such circumstances, the conventional approach to the interpretation and application of s 39(2) is that, except where the Court's powers are expressly enlarged (eg by s 39(6) and (6A)), the Court has the same powers (including the same duties and limitations on those powers) as are vested in the Council.
54. Since there is nothing in the present case that would justify or require any departure from that conventional approach, I would accordingly answer this question in the affirmative but only in the sense that in exercising the available power, the Court would be bound to observe all of the limitations that are imposed on the power vested in the Council by virtue of the Delegation."
Tahany is a decision of Commissioner Dickson:
"29 Applying Connery v Manly Council (1999) 105 LGERA 451, Goldberg v Waverley Council [2007] NSWLEC 259 and Makram Constructions Pty Ltd v North Sydney Council [2002] NSWLEC 4, I am satisfied that the Court can exercise the functions of Waverley Council under the Roads Act. However, the exercise of those functions is such to the same limitations as the Council's formal delegation pursuant to the Road Transport Act 2013 (Transport Act). The relevant delegation is extracted in Ex 3. Relevantly, the delegation allows the Council to exercise the functions of the Roads and Maritime Service (nowTfNSW ) to approve traffic control devices. However, the delegation is limited by a number of conditions, including:
…
7. A Council or its sub-delegate must not exercise a function until they have notified the Commissioner of Police and RMS of any decision taken the exercise a function except where:
(1) the advice of the Local Traffic Committee is unanimous; and
(2) the Council or its subdelegate propose to follow such advice
…"
In Tahany, the relevant Traffic Committee unanimously resolved to support the introduction of angled spaces if the subject development was approved, accordingly Dickson C was not required to consider this issue any further.
HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 ("HP Subsidiary"), a decision of Preston CJ, is relied on by the Applicant for the proposition that the Court is able to determine the development application by way of approval and it is open for the Court to impose any requirement for consent, approval or authorisation pursuant to s 122 of the RT Act as an operational condition of consent to be satisfied prior to the issue of any occupation certificate. This is consistent with the findings and approach of Preston CJ in HP Subsidiary. At [109] and [112] - [113];
"109 …The Council noted that HP Subsidiary will need to obtain authorisation under s 122 of the Road Transport Act 2013 to install the traffic control devices of the median island and No U-turn sign in Hill Road and approval under the Roads Act 1993 to carry out such roadworks in Hill Road. Obtaining this authorisation and approval may take some time. The power to issue authorisation under s 122 of the Roads Act 1993 is delegated to a Local Traffic Committee that includes four members, only one of whom is a representative of the Council, and is subject to limitations. The Council has no control over the process. There is no certainty that the necessary authorisation will be issued…."
"112 I agree with HP Subsidiary that it is not necessary to impose a deferred commencement condition and it will be sufficient to impose an operational condition of consent that the traffic control devices must be installed before an occupation certificate can be issued for the proposed development. This will ensure that there will be no resident-generated traffic from the development before the traffic control devices are operational to control such traffic.
113 Any risk associated with carrying out construction of the development before the traffic control devices have been approved and installed, such as not being able to obtain or a delay in obtaining the necessary authorisation and approval of the traffic control devices, will be borne by HP Subsidiary. It must decide if it is inclined to or can afford to take that risk. If it does not wish to take the risk, it can defer commencement of construction of the development until it has obtained the necessary authorisation and approval of the traffic control devices."
The parties agree that the Court is able to determine the Class 1 Appeal by way of grant of development consent and that it is open for any requirement for consent, approval or authorisation pursuant to s 122 of the RT Act to be imposed as an operational condition of consent to be satisfied prior to the issue of any occupation certificate. This is consistent with the findings and approach in HP Subsidiary as well as the established approach of the Court with respect to such matters in its Class 1 jurisdiction.
On 15 May 2023, the Inner West Traffic Committee considered the proposal for the installation of a "no-parking" sign on the western side of Fawcett Street along the frontage of 14C Jane Street and determined to defer the meeting for approximately three weeks following the completion of further community engagement. For the avoidance of doubt, this community engagement is not a jurisdictional requirement and is separate to the notification requirements under the EPA Act.
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.
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.