The Applicant filed with the Court the abovementioned amended materials associated with the amended development application (and with the consent of the Respondent) on 25 June 2024.
[2]
Orders
The Court orders:
1. The written request made pursuant to clause 4.6 of the Inner West Local Environmental Plan 2021, in relation to a variation to the floor space ratio development standard (of clause 4.4 of the Inner West Local Environmental Plan 2021), prepared by Weir Phillips Heritage and Planning and dated 15 March 2024, is upheld.
2. The appeal is upheld.
3. Development application number DA/2023/0158, as amended, for partial demolition of existing structures and alterations and additions to the mixed use building on land identified as Lot 1 in Deposited Plan 583151 and known as 599 King Street, Newtown, is determined by the grant of development consent subject to the conditions included at Annexure A.
Peter Walsh
Commissioner of the Court
Annexure A
[3]
Amendments
05 July 2024 - Correction made to the name of the Applicant's solicitor on the coversheet.
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: 05 July 2024
[4]
I accept the advice of the parties that the proposal is satisfactory in relation to the above for the following reasons (Jurisdictional Statement par 25):
[5]
- The works proposed at the King Street frontage are minor and involve upgrade of the existing shopfront only with the majority of proposed works to the rear of the Site, away from the King Street frontage;
[6]
- The proposed single-vehicle vehicular access to the Site will be via the dedicated and newly formed laneway at the rear of the Site;
[7]
- The safety, efficiency and ongoing operation of King Street will not be adversely affected by the Proposal.
[8]
- The Proposal is appropriately designed, and conditioned, to account for traffic noise.
[9]
The site is, for the most part, zoned E1 Local Centre Zone (E1 Zone) with the rearmost 6.1 metres (of the depth) of the site zoned SP2 Infrastructure Local Road (SP2 Zone). The proposal, insofar as it lies within the E1 Zone, is characterised as a mixed use development, comprising a commercial premises and shop top housing, which is development permitted with consent in the applicable E1 Zone. The proposal provides for dedication of the part of the site zoned SP2 Zone to Council for the purpose of a road, which is development permitted with consent in the SP2 Zone. The proposal also includes subdivision and demolition, each permissible pursuant to cll 2.6 and 2.7, respectively.
Pursuant to cl 4.3(2) and the Height of Buildings Map, a maximum building height of 14m applies. The parties agree that the proposal complies with this standard.
Relating to cl 4.4, the position adopted by the parties to the agreement is that the proposal breaches the applicable floor space ration (FSR) standard. This is considered below.
I note that pursuant to cl 5.1(2) of the LEP, the Respondent is identified as the relevant authority to acquire the part of the site zoned SP2. The parties outline the legal bases for the proposed dedication of land (jurisdictional statement par 56); citing the following authorities: Urban Apartments Pty Ltd v Penrith City Council[2023] NSWLEC 1094 at [78] (with respect to public road creation through plan of subdivision under the provisions of s 9 of the Roads Act 1993) and L & G Management Pty Ltd v Council of the City of Sydney[2021] NSWLEC 149 at [40] (with respect to a splay at the north-western corner of the site which aligns with the Inner West Local Infrastructure Contributions Plan dated 20 February 2023, and s 7.11 of the EPA Act). I accept the legitimacy of the parties' agreed proposition.
The site is located within the King Street and Enmore Road Heritage Conservation Area (HCA), under cl 5.10(2) consent is required for demolition and additions to, and the erection of, a building on land that is within a HCA; something which is sought with the DA. Under cl 5.10(4), there is a need to consider the effect of the proposed development on the heritage significance of the HCA. Council advises, and I accept, that this has occurred.
The parties advise that the required consideration has also occurred in regard to cl 6.2, relating to earthworks.
Clause 6.3 is concerned with stormwater management. It lists three matters relating to the technical aspects of stormwater management with which the consent authority must be satisfied before the grant of any development consent. I am advised in the parties' jurisdictional statement (par 46) that as a consequence of the concept stormwater plans accompanying the DA and consent conditions, each of the tests are satisfied. I accept this advice.
[10]
Clause 4.2(2) establishes, with the relevant FSR Map, an FSR standard of 1.5:1. Under the interpretation of inclusion and exclusion provisions as agreed by the parties, the proposed FSR is 1.62:1, a contravention of about 8%.
As the DA was lodged by not finally determined prior to 1 November 2023, the former (pre 1 November 2023) version of cl 4.6 applies. In turn, pursuant to cl 4.6(2), development consent may be granted for development even though the development would contravene a development standard, provided the relevant preconditions can be met. Council is satisfied that they can be. Nevertheless in this instance, the Court needs to make its own findings in regard to them.
To open the door to the permissive powers of cl 4.6 the applicant has provided a written request seeking to justify the contravention of the FSR standard (prepared by Weir Phillips Heritage and Planning and dated 15 March 2024). Further, a consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3).
There are two preconditional factors involved in cl 4.6(3). The first requires the consent authority to be satisfied that the applicant's written request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The written request notes that compliance with a development standard may be seen as unreasonable or unnecessary through demonstration of one or more of the ways offered in Wehbe v Pittwater Council(2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first Wehbe way, demonstrating that the proposal would achieve the objectives of the standard, notwithstanding the contravention. The objectives of cl 4.4, relating to FSR, are as follows:
[11]
(a) to establish a maximum floor space ratio to enable appropriate development density,
[12]
(b) to ensure development density reflects its locality,
[13]
(c) to provide an appropriate transition between development of different densities,
[14]
(d) to minimise adverse impacts on local amenity, (e) to increase the tree canopy and to protect the use and enjoyment of private properties and the public domain.
[15]
In regard to the first objective, the written request puts it that "this is an objective of the clause rather than objective for development under the clause". I agree with this sentiment. This argument aligns with the kind of development standard objective considered in Baron Corporation Pty Limited v Council of the City of Sydney(2019) 243 LGERA 338; [2019] NSWLEC 61 (Baron) to be "explanatory of the purpose of the ... development standard" (Baron at [32]). Objective (a) explains an intention behind the "establishment" of a maximum FSR. There is no purpose served by demonstrating the development achieving this objective. The objective is already achieved with the controls under cl 4.4 of IWLEP. The written request adequately demonstrates that the proposal achieves the second and third FSR objectives through its demonstration that the contravention enables a density consistent with surrounding sites fronting King Street, and that the proposed development allows a transition to the lower density residential properties to the rear, through stepping-down and rear land dedication. The written request also adequately demonstrates that the proposal achieves the fourth and fifth FSR objectives in indicating that the contravention would not bring about a negative impact on local amenity or impact the tree canopy.
The second preconditional factor involved in cl 4.6(3) would require the consent authority to be satisfied that the applicant's written request has adequately demonstrated that there are sufficient environmental planning grounds to justify the contravention. The written request has successfully achieved this with its arguments that the contravention would permit a density of development which would optimise its location in close proximity to public transport, retail and other community facilities; and through its arguments that the contravention would enable density consistent with that in surrounding sites fronting King Street.
I now turn to cl 4.6(4) of IWLEP, and the question of whether the proposed development would be in public interest because it is consistent with the objectives of the contravened development standard and the applicable zones. I accept and adopt the written request's arguments to satisfy myself that the development is consistent with the objectives of the contravened FSR standard. I also find the proposed development is consistent with both the E1 and SP2 zone objectives.
The proposed development is consistent with the E1 Local Centre zone objectives as I explain below:
The proposed development is consistent with the first, fourth, sixth and seventh of these zone objectives because it would retain ground floor space capable of accommodating a range of business, community and retail uses.
The proposed development is consistent with the second of these zone objectives because the proposed retail use would help generate employment opportunities and economic growth.
The proposed development is consistent with the third of these zone objectives because the proposed residential development, located above retail uses, would help revitalise the site and contribute to the creation of a vibrant and active local Centre.
The proposed development is consistent with the fifth of these zone objectives because the proposal would provide retail employment along King Street.
The proposed development is consistent with the eighth of these zone objectives because the proposal would provide an active street frontage through the proposed new shopfront.
The proposed development is consistent with the ninth of these zone objectives because it would maintain the historical streetscape character of King Street while providing a more contemporary building to the rear.
Relevantly, the proposed development is also consistent with the SP2 Infrastructure zone objectives as I explain below:
The proposed development is consistent with the first and fourth of these zone objectives because it would allow for the dedication of land for the purposes of a local road and the widening of the rear lane.
The proposed development is consistent with the second of these zone objectives because it would not include development which would hinder the widening of the rear lane.
The proposed development is consistent with the third of these zone objectives because it would provide for land for community purposes.
Together these findings mean I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the standard and the relevant zones.
I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of IWLEP 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 the IWLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR control.
[16]
The parties advise the proposal was notified in accordance with requirements and a single objecting submission was received and that this submission has been considered in the finalisation of the agreement.
[17]
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 in turn required 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.
Request to Contravene a Development Standard under Clause 4.6
[20]
(2) The Applicant filed with the Court the abovementioned amended materials associated with the amended development application (and with the consent of the Respondent) on 25 June 2024.
[21]
(1) The written request made pursuant to clause 4.6 of the Inner West Local Environmental Plan 2021, in relation to a variation to the floor space ratio development standard (of clause 4.4 of the Inner West Local Environmental Plan 2021), prepared by Weir Phillips Heritage and Planning and dated 15 March 2024, is upheld.
(2) The appeal is upheld.
(3) Development application number DA/2023/0158, as amended, for partial demolition of existing structures and alterations and additions to the mixed use building on land identified as Lot 1 in Deposited Plan 583151 and known as 599 King Street, Newtown, is determined by the grant of development consent subject to the conditions included at Annexure A.
05 July 2024 - Correction made to the name of the Applicant's solicitor on the coversheet.
Parties
Applicant/Plaintiff:
KSPI Pty Ltd
Respondent/Defendant:
Inner West Council
Legislation Cited (3)
Planning and Assessment Act 1979
Environment Court Act 1979
Planning and Assessment Regulation 2021
Cases Cited (6)
Inner West Local Environmental Plan 2022 (IWLEP)
The site is, for the most part, zoned E1 Local Centre Zone (E1 Zone) with the rearmost 6.1 metres (of the depth) of the site zoned SP2 Infrastructure Local Road (SP2 Zone). The proposal, insofar as it lies within the E1 Zone, is characterised as a mixed use development, comprising a commercial premises and shop top housing, which is development permitted with consent in the applicable E1 Zone. The proposal provides for dedication of the part of the site zoned SP2 Zone to Council for the purpose of a road, which is development permitted with consent in the SP2 Zone. The proposal also includes subdivision and demolition, each permissible pursuant to cll 2.6 and 2.7, respectively.
Pursuant to cl 4.3(2) and the Height of Buildings Map, a maximum building height of 14m applies. The parties agree that the proposal complies with this standard.
Relating to cl 4.4, the position adopted by the parties to the agreement is that the proposal breaches the applicable floor space ration (FSR) standard. This is considered below.
I note that pursuant to cl 5.1(2) of the LEP, the Respondent is identified as the relevant authority to acquire the part of the site zoned SP2. The parties outline the legal bases for the proposed dedication of land (jurisdictional statement par 56); citing the following authorities: Urban Apartments Pty Ltd v Penrith City Council [2023] NSWLEC 1094 at [78] (with respect to public road creation through plan of subdivision under the provisions of s 9 of the Roads Act 1993) and L & G Management Pty Ltd v Council of the City of Sydney [2021] NSWLEC 149 at [40] (with respect to a splay at the north-western corner of the site which aligns with the Inner West Local Infrastructure Contributions Plan dated 20 February 2023, and s 7.11 of the EPA Act). I accept the legitimacy of the parties' agreed proposition.
The site is located within the King Street and Enmore Road Heritage Conservation Area (HCA), under cl 5.10(2) consent is required for demolition and additions to, and the erection of, a building on land that is within a HCA; something which is sought with the DA. Under cl 5.10(4), there is a need to consider the effect of the proposed development on the heritage significance of the HCA. Council advises, and I accept, that this has occurred.
The parties advise that the required consideration has also occurred in regard to cl 6.2, relating to earthworks.
Clause 6.3 is concerned with stormwater management. It lists three matters relating to the technical aspects of stormwater management with which the consent authority must be satisfied before the grant of any development consent. I am advised in the parties' jurisdictional statement (par 46) that as a consequence of the concept stormwater plans accompanying the DA and consent conditions, each of the tests are satisfied. I accept this advice.
Development standard breach
Clause 4.2(2) establishes, with the relevant FSR Map, an FSR standard of 1.5:1. Under the interpretation of inclusion and exclusion provisions as agreed by the parties, the proposed FSR is 1.62:1, a contravention of about 8%.
As the DA was lodged by not finally determined prior to 1 November 2023, the former (pre 1 November 2023) version of cl 4.6 applies. In turn, pursuant to cl 4.6(2), development consent may be granted for development even though the development would contravene a development standard, provided the relevant preconditions can be met. Council is satisfied that they can be. Nevertheless in this instance, the Court needs to make its own findings in regard to them.
To open the door to the permissive powers of cl 4.6 the applicant has provided a written request seeking to justify the contravention of the FSR standard (prepared by Weir Phillips Heritage and Planning and dated 15 March 2024). Further, a consent authority, or the Court on appeal, must be satisfied that the applicant's written request has adequately addressed the matters required to be addressed by cl 4.6(3).
There are two preconditional factors involved in cl 4.6(3). The first requires the consent authority to be satisfied that the applicant's written request has adequately demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. The written request notes that compliance with a development standard may be seen as unreasonable or unnecessary through demonstration of one or more of the ways offered in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The written request uses the first Wehbe way, demonstrating that the proposal would achieve the objectives of the standard, notwithstanding the contravention. The objectives of cl 4.4, relating to FSR, are as follows:
(a) to establish a maximum floor space ratio to enable appropriate development density,
(b) to ensure development density reflects its locality,
(c) to provide an appropriate transition between development of different densities,
(d) to minimise adverse impacts on local amenity, (e) to increase the tree canopy and to protect the use and enjoyment of private properties and the public domain.
In regard to the first objective, the written request puts it that "this is an objective of the clause rather than objective for development under the clause". I agree with this sentiment. This argument aligns with the kind of development standard objective considered in Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 (Baron) to be "explanatory of the purpose of the … development standard" (Baron at [32]). Objective (a) explains an intention behind the "establishment" of a maximum FSR. There is no purpose served by demonstrating the development achieving this objective. The objective is already achieved with the controls under cl 4.4 of IWLEP. The written request adequately demonstrates that the proposal achieves the second and third FSR objectives through its demonstration that the contravention enables a density consistent with surrounding sites fronting King Street, and that the proposed development allows a transition to the lower density residential properties to the rear, through stepping-down and rear land dedication. The written request also adequately demonstrates that the proposal achieves the fourth and fifth FSR objectives in indicating that the contravention would not bring about a negative impact on local amenity or impact the tree canopy.
The second preconditional factor involved in cl 4.6(3) would require the consent authority to be satisfied that the applicant's written request has adequately demonstrated that there are sufficient environmental planning grounds to justify the contravention. The written request has successfully achieved this with its arguments that the contravention would permit a density of development which would optimise its location in close proximity to public transport, retail and other community facilities; and through its arguments that the contravention would enable density consistent with that in surrounding sites fronting King Street.
I now turn to cl 4.6(4) of IWLEP, and the question of whether the proposed development would be in public interest because it is consistent with the objectives of the contravened development standard and the applicable zones. I accept and adopt the written request's arguments to satisfy myself that the development is consistent with the objectives of the contravened FSR standard. I also find the proposed development is consistent with both the E1 and SP2 zone objectives.
The proposed development is consistent with the E1 Local Centre zone objectives as I explain below:
The proposed development is consistent with the first, fourth, sixth and seventh of these zone objectives because it would retain ground floor space capable of accommodating a range of business, community and retail uses.
The proposed development is consistent with the second of these zone objectives because the proposed retail use would help generate employment opportunities and economic growth.
The proposed development is consistent with the third of these zone objectives because the proposed residential development, located above retail uses, would help revitalise the site and contribute to the creation of a vibrant and active local Centre.
The proposed development is consistent with the fifth of these zone objectives because the proposal would provide retail employment along King Street.
The proposed development is consistent with the eighth of these zone objectives because the proposal would provide an active street frontage through the proposed new shopfront.
The proposed development is consistent with the ninth of these zone objectives because it would maintain the historical streetscape character of King Street while providing a more contemporary building to the rear.
Relevantly, the proposed development is also consistent with the SP2 Infrastructure zone objectives as I explain below:
The proposed development is consistent with the first and fourth of these zone objectives because it would allow for the dedication of land for the purposes of a local road and the widening of the rear lane.
The proposed development is consistent with the second of these zone objectives because it would not include development which would hinder the widening of the rear lane.
The proposed development is consistent with the third of these zone objectives because it would provide for land for community purposes.
Together these findings mean I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the standard and the relevant zones.
I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b) of IWLEP 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 the IWLEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR control.