So Nash Pty Limited v Inner West Council

Land and Environment Court (NSW)|2018-06-27

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against a number of conditions, including deferred commencement conditions, imposed on Development Consent No. D/2016/366 for the adaptive reuse of a local heritage item as a mixed use development (the proposal) at 236 Darling Street, Balmain (the site), granted by the Inner West Council (the Council).
The appeal was subject to mandatory conciliation on 12 January 2018, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 24 January 2018, pursuant to s 34(4) of the LEC Act.
The appeal was against 28 conditions of consent. Through the conciliation process, the majority of the appealed conditions were agreed by the parties, either by an agreed amendment to the wording of those conditions or by the condition not being pressed by the Council. By the end of the hearing, the parties had reduced the dispute to two conditions of consent.
The parties agreed on the deletion of condition 6(b), the deletion of the contribution for commercial car parking in condition 8, amendments to conditions 9(f) and (l), an amendment to condition 10, the deletion of condition 21, an amendment to condition 30(a), an amendment to condition 33, an amendment to condition 42 and the deletion of condition 79. These changes were included in exhibit 1 and exhibit A ff 100-138 and the agreed terms of conditions 10 and 33 were filed with the Court on 28 June 2018 as the conditions of consent.

The site and its context

The site is on the southern side of Darling Street, on the western corner of Jane Street. The site contains a two storey building constructed from sandstone blocks with a decorative parapet on the Darling Street façade and a traditional shopfront on the ground floor with an awning over.

The approved development

Development Consent No. D/2016/366 was granted by the Council on 13 February 2017 for the adaptive reuse of the existing two storey sandstone building including the retention of the ground floor commercial premises, the reinstatement of a two storey street front verandah over the footpath and five residential apartments, subject to the conditions of consent.

Planning framework

The site is zoned B2 Local Centre pursuant to Leichhardt Local Environmental Plan 2013 (LEP 2013). The objectives of the B2 zone are as follows: • 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. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To ensure that development is appropriately designed to minimise amenity impacts. • To allow appropriate residential uses to support the vitality of local centres. • To ensure that uses support the viability of local centres. • To provide a mixture of compatible land uses. • 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. • To integrate suitable business, office, residential, retail and other development in accessible locations.
The site is identified as a local heritage item (Schedule 5 of LEP 2013, Item 193 "Former Oddfellows Hall, including interiors").
Despite a submission by the applicant that the site is listed on the State Heritage Register, the site is not listed as a State heritage item. The submission was based on an erroneous reference in the Heritage Impact Statement to the "SHR" (exhibit A, f 336), that should have instead referenced the State Heritage Inventory, which is a list of heritage items in NSW including local heritage items.

Public submissions

Two resident objectors provided evidence at the commencement of the hearing on site. It is their view that the off-street parking should not be permitted because it will interfere with on-street parking in Jane Street and because the area is a heritage conservation area with sandstone kerbs and the cross-over will detrimentally impact on the heritage significance of the area. It is their view that the development should not have access to parking permits because the nearby school already has a number of staff with parking permits and there is a significant demand for on-street parking in the area.

Expert evidence

The applicant relied on the expert evidence of Mr John Pagan (planning) and Mr Dean Brodie (traffic). The Council relied on the expert evidence of Ms Denise Benger (planning) and Mr James Ogg (traffic).

The deferred condition of consent, condition 1

The deferred condition of consent is included in the following table. The parties' agreement in relation to the deferred commencement condition, as made in submissions and exhibits 1 and A, is noted: Deferred commencement condition Parties' agreement a) The submission of revised 1:50 or 1:20 scaled plans (with dimensions of all key features) showing more detailed information about all of the materials of the verandah including the exact balustrade and bracket patterns; precise column capital and base details; and where all of the various materials are to be sourced from, which, in relation to the proposed first floor column brackets, shall be a better match to the original details of the circa 1890's verandah of the site, as shown on page 8 of the submitted Heritage Impact Statement. Parties agreed this condition is to be retained. The parties agreed that this condition has been substantially complied with by the provision of a photograph of the original or early verandah and detailed drawings. b) The revised first floor balustrade is to comprise of cast galvanised steel or a similar equivalent. Parties agreed this condition is to be retained. c)The form, height and detail of the first floor verandah floor is to better match the original details of the circa 1890's verandah of the site as shown on page 8 of the submitted Heritage Impact Statement. Parties agreed this condition is to be retained. d) The roofing of the first floor verandah shall comprise of the same materials as the replacement roofing for the remainder of this building i.e. "Gull Grey" heritage barrel rolled traditional corrugated steel. The parties agreed that this condition is to be deleted and replaced with the following: The roofing of the first floor verandah shall comprise of the same materials as the replacement roofing for the remainder of this building i.e. heritage barrel rolled traditional corrugated steel. e) The deletion of the three proposed roof lights to the proposed reinstated front verandah. The parties agreed this condition is to be retained. f) The deletion of the roof light R10 from the eastern elevation roof. The parties agreed this condition is to be deleted. g) The deletion of roof lights numbered R05, R08, R13 from the western elevation roof. The parties agreed this condition is to be deleted. The parties agreed that R13 is to be noted as R06. h) The deletion of the roof lights to the new verandah on the western elevation of the building. The parties agreed this condition is to be deleted. i) The deletion of the proposed photovoltaics on the western elevation of the building. The parties agreed that this condition is to be deleted and replaced with the following: The two photovoltaic panels closest to Darling Street are to be removed, but may be relocated to the array on the flat roof to the rear (south) of the main building. j) The roof lights are to amended to be flush to the roof, as practicable, and coloured to blend with the "Gull Grey" Colour of the heritage barrel rolled traditional corrugated steel replacement roofing of the building. The parties agreed that this condition is to be deleted and replaced with the following: The roof lights are be of a form that when closed, lie parallel to and as close as practicable to the roof and are to be coloured to blend with the heritage barrel rolled traditional corrugated steel replacement roofing of the building. k) The privacy screen on the verandah separating the private open space of Units 1.3 & 1.4 is to be permanently fixed so as to separate the private open space areas of these two dwellings. The parties agreed that this condition is to be deleted and replaced with the following: The privacy screen on the verandah separating the private open space of Units 1.3 & 1.4 is to be permanently locked and closed (other than for maintenance) so as to separate the private open space areas of these two dwellings. l) Confirmation on plans that the existing Darling Street shopfront is to be protected and preserved. Parties agreed this condition is to be retained.

As raised with the parties during the hearing, the amendments described in the deferred commencement condition are not required to be imposed on the consent as a deferred commencement condition because the changes described in condition 1 amend the original proposal and the documentation can be amended to accord with the agreed version of condition 1. The amended architectural plans will then be consistent with the development consent granted and not amended by condition. Mr Fraser indicated that it is the applicant's preference to have the agreed deferred commencement condition deleted and instead have the amendments shown on the architectural plans or moved to the conditions of consent, as necessary. Mr Bonanno did not disagree with this course of action.
The applicant is to provide amended architectural drawings that show and/or indicate by notes on the architectural drawings conditions 1(a), (b), (c), (d) as amended, (e), (g) as amended to describe R13 as R06, (i) as amended, (j) as amended, (k) as amended and (l). The revision numbers and dates of the architectural drawings are to be updated and the revisions noted. The amended architectural plans are to include details of the front verandah to match the known details of the c1890 verandah evident on photographs included in the Heritage Impact Statement (exhibit A, ff 332-333).
The Council is to move condition 1(j) as amended to the conditions of consent. The deferred commencement condition 1 is to be deleted. The Council is to update condition 2 listing the approved architectural drawings with new revision numbers and dates of the amended architectural drawings.

Condition 6(a) Deletion of on-site car space

Condition 6(a) is in the following terms: The proposed garage and footway crossing shall be deleted and may be replaced with a storage room for bicycle parking and/or storage lockers allocated to the residential units. The roller door shall be deleted and replaced with a pedestrian door on the northern side of the Jane Street frontage, with a maximum door width of 1500mm. The floor level of the storage room must be raised to RL 35.9m AHD without raising the height of the structures above.
Jane Street is a dead end at its northern end. There is only pedestrian access between Darling Street and Jane Street. The experts agreed that Jane Street accommodates only a small volume of local traffic. They agreed that there are no parking restrictions at the northern end of Jane Street and that the hotel on the opposite corner has an informal practice on busy evenings of encouraging its patrons to park in a tandem arrangement at the northern end of the Jane Street.
According to Mr Ogg, there are 11 on-street car parking spaces at the northern end of Jane Street and the provision of the driveway crossover would result in the loss of one on-street car parking space. In his opinion, the on-street car parking space has a greater benefit than a private off-street car parking space as the on-street car parking space is available at all times. The applicant submitted that the driveway cross-over is 3m wide and this is less than the length of one car space, so the loss is less than one on-street car space.
I prefer and accept Mr Ogg's evidence that the driveway crossover to the site would be likely to result in one less on-street car parking space, because the restriction created by the driveway cross-over will mean that one less car parking space is available at the northern end of Jane Street. Given the significant demand for on-street car parking spaces in the vicinity of the site, particularly because these car parking spaces are not restricted, I prefer and accept Mr Ogg's opinion that in the particular circumstances of this site and its position on Jane Street, the public benefit of the on-street car parking space outweighs the applicant's benefit of one off-street car parking space.
The applicant is to amend the architectural drawings to delete the proposed off-street parking and footway crossing. The room may be replaced with a storage room for bicycle parking and/or storage lockers allocated to the residential units. The roller door is to be deleted and replaced with a door on the northern side of the Jane Street frontage with a maximum width of 1500mm. The floor level of the room need not be changed. The Council is to amend condition 6(a) to note that the development consent does not include off-street parking.

Condition 83 Notification re resident parking scheme

Condition 83 is in the following terms: All owners, tenants and occupiers of this building are not eligible to participate in any existing or proposed Council Resident Parking Schemes. All occupants and/or employees of this building will be ineligible to obtain Council Resident Parking Scheme parking permits. The owner of the dwelling must advise in writing all intending owners, tenants and occupiers of the dwelling, at the time of entering into a purchase / lease / occupancy agreement, of this prohibition. Signs reading "all owners, tenants and occupiers of this building are advised that they are not eligible to obtain Resident Parking Scheme parking permits from Council", must be located in prominent places such as at display apartments and on directory boards or notice boards, where they can easily be observed and read by people entering the building. The signs must be erected prior to the issue of an Occupation Certificate being issued and must be maintained in good order at all times.
The Council's Residents Parking Scheme (RPS) policy (exhibit 4, ff 25-27) is dated 30 October 2007 and was amended 29 April 2014. Its stated purpose is to "set out the requirements for consideration of a Resident Parking Scheme". The policy sets out the requirements for residents to initiate an investigation for a RPS in a given street or area. Under the heading, "Criteria for Consideration of an Area for a Resident Parking Scheme", the policy includes the following at 2(i): Dual occupancies, multi dwelling housing and residential flat buildings, subdivisions into two or more lots and the strata subdivision of residential flat buildings, approved after January 2001 are not allowed to participate in a RPS as off-street parking should be provided in accordance with Council's DCP - Parking.
The approved development is potentially caught by the policy statement at 2(i) of the policy, despite being a mixed use development, as a residential flat building is defined in the dictionary of LEP 2013 as a building containing 3 or more dwellings.
It was Mr Pagan's evidence that the requirement for off-street parking generated by the development in the Leichhardt Development Control Plan (Leichhardt DCP) at C1.11.1 at table C4 is 5 parking spaces, which includes 3 residential parking spaces, one commercial parking space and one visitor parking space. The proposal included one onsite parking space and this was deleted by the development consent granted at condition 6(a). It was Mr Pagan's uncontested evidence that the occupants of the existing development on the site have between them 14 commercial parking permits permitting those occupants to park within the B1 and B2 areas beyond any time limitations for on-street parking (shown on map 4, exhibit 8).
The Council submitted that the purpose of condition 83 is to put the applicant and future occupiers of the approved development on notice that they are not eligible to obtain a parking permit under the Council's RPS. I concur with Commissioner Gray's recent finding in relation to an identical first paragraph of this condition that the wording of the condition does more than simply put future occupants of the approved development on notice, it also excludes those occupants from participating in the Council's existing or proposed RPS and in the second sentence prohibits them from participating in a RPS in perpetuity (Rogers v Inner West Council [2018] NSWLEC 1305 [45]).
The applicant submitted that I should not give the policy much weight because it has not been the subject of public consultation, on the basis of the relevant matters to consider when determining the weight to be given to a planning policy adopted by the Council, as listed in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 [92]. As the future occupants of the approved development are prohibited from participating in a RPS in perpetuity under condition 83, my task is not strictly a matter of what weight to give to the current policy.
I accept the applicant's submission that the policy has been formulated as a guide to the requirements to trigger an investigation for a RPS in a street or an area because that is its stated purpose. Nevertheless, 2(i) of the policy could be interpreted as a brief statement of Council's policy in relation to the eligibility of an occupant of a residential flat building approved after January 2001 for a parking permit and the Council may impose it when considering any future application for a parking permit by an occupant of the approved development.
The site is constrained by an inability to accommodate 5 off-street car parking spaces, because the existing building occupies the majority of the site area and it is a local heritage item. There is no opportunity on this site to provide off-street car parking spaces to meet the parking rates envisaged by Leichhardt DCP. It was uncontroversial that the identified heritage significance of the item would be detrimentally impacted by a proposal to accommodate more than one off-street car parking space. Nevertheless, the Council accepted, as demonstrated by the development consent granted, that the development is suitable, despite it not being possible to provide the 5 off-street car parking spaces.
The policy is silent on the Council's position regarding participation in a RPS when off-street car parking cannot be provided in accordance with Leichhardt DCP. For this reason, I concur with Commissioner Gray's finding only to the extent that the Council should retain discretion to take into consideration this particular circumstance of the approved development when considering any future application for a parking permit by an occupant of the approved development (Rogers v Inner West Council [2018] NSWLEC 1305 [53]). For this reason, condition 83 is to be deleted.

Conclusion

I am satisfied that it is appropriate to uphold the appeal following the filing by the parties of amended architectural drawings and conditions in accordance with the directions below.
The amendments described in the deferred commencement condition are to be shown on amended architectural drawings so that the deferred commencement condition can be deleted.
The off-street car parking space and footway crossing are to be deleted on the amended architectural drawings because the public benefit of the on-street car parking space that would be removed to provide for the driveway cross-over outweighs, in all the circumstances of this matter, the private benefit of an off-street car parking space to the applicant.
Condition 83 regarding the notification of occupants of the approved development that they are not eligible to participate in the Council's RPS is to be deleted because the Council should retain discretion to consider the site constraints that prevented the approved development from meeting the Leichhardt DCP rates for off-street parking.

Directions

The applicant is to file and serve by 20 July 2018 settled documentation to reflect my determinations, including the following:

The architectural drawings are to be amended to show and/or indicate by notes conditions 1(a), (b), (c), (d) as amended, (e), (g) as amended to describe R13 as R06, (i) as amended, (j) as amended, (k) as amended and (l).
The revision numbers and dates of the architectural drawings are to be updated and the revisions noted.
The amended architectural plans are to include details of the front verandah to match the known details of the c1890s verandah evident on photographs included in the Heritage Impact Statement (exhibit A, ff 332-333).
The changes described to the development in condition 6(a), excluding the altered floor level, are to be included on the architectural drawings.

The respondent is to file and serve, by 27 July 2018, settled conditions of consent to reflect my determinations, including the following:

The deletion or amendment of conditions, as agreed between the parties and summarised at [4].
Condition 1 is to be deleted, except for condition 1(j) which is to be included, as amended, in the conditions of consent.
Condition 2 listing the approved documentation is to be updated with new revision numbers and dates.
Condition 6(a) is to be amended to state that the approved development does not include off-street parking.
The contribution amount for a security deposit in condition 11 is to be in the amount of $21,700.00.
Condition 83 is to be deleted.

The matter is listed for mention before me at 10am on 30 July 2018. If directions [37] and [38] are complied with, I will make orders in chambers to dispose of the proceedings in accordance with this decision and vacate the mention.
Liberty to restore on two days' notice.

Susan O'Neill Commissioner of the Court 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: 03 July 2018

(2004) 136 LGERA 254

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Cases Cited (2)

Cited By (1)