Taylor v Woollahra Municipal Council

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the refusal of its development application DA/289/2019/1. The development application seeks approval for alterations and additions to the existing building and its adaptive reuse as a mixed use development comprising a café for 20 patrons, 6 single occupancy units, a caretakers residence and two parking spaces. The development is proposed at 278 Oxford Street, Paddington.
2. On the 6 August 2019, the Applicant lodged a development application with Woollahra Municipal Council. Following the expiration of the deemed refusal period for the application, the Applicant appealed to the Court.
3. In accordance with the Court's usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 8 May 2020. I presided over the conciliation conference. Through the conciliation process, the parties have agreed an amended design for the proposed works. The agreed orders provide leave to the applicant to rely on this amended material in their development application.
4. Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.
5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at clause 7 of State Environmental Planning Policy 55 - Remediation of Land, I accept that the likelihood of contamination is low. Further the development application includes a Hazardous Building Materials Survey and the annexed conditions of consent incorporate appropriate conditions to manage risk. 2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: A348001 in compliance with the instrument. 3. The application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) a boarding house. The application satisfies cl 26 of SEPP ARH as the subject site is zoned B4 Mixed Use. 4. The subject site meets the definition of 'accessible area' on the basis of the site being within 400m of a bus stop with regular services as required by cl 4(1)(c) of SEPP ARH. 5. I am satisfied that the application complies with the standards listed at cl 30 of SEPP ARH. 6. I have also taken into consideration whether or not the design is compatible with the local area as required by cl 30A of the SEPP ARH. I accept the agreed position of the parties that the proposed development, as amended, will be compatible with the character of the local area. 7. State Environmental Planning Policy (Infrastructure) 2007 applies. At cl 102 it requires that residential development adjacent a road corridor meet specific noise criteria. I am satisfied that these criteria are met on the basis of the acoustic impact assessment accompanying the development application and the imposition of conditions. 8. The subject site is zoned B4: Mixed Use Development under Woollahra Local Environmental Plan 2014 (LEP 2014). The application seeks approval for a Boarding House and a Food and Drink Establishment, both of which are permissible uses in the zone. 9. The proposed development does not comply with the building height control at cl 4.3 of LEP 2014. The development standard establishes a maximum height of 9.5m. Clause 4.3 is a development standard to which exceptions can be granted pursuant to cl 4.6 of LEP 2014. The amended development application has a maximum height of 12.2m. 10. The proposed development does not comply with the floor space ratio (FSR) control at cl. 4.4 of LEP 2014. The site is subject to a maximum FSR of 4:1. The amended development application has an FSR of 1.36:1. 11. The applicant argues that a cl 4.6 variation request for the variations to height and FSR are not required on the basis of the reasoning applied in the following determinations of the Court: 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13, Koutsos & Anor v Manly Council [2016] NSWLEC 1121, Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026 and Maham Group Pty Ltd v Blacktown City Council [2019] NSWLEC 1168. I note, for completeness, that the Court has also held in Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339 that there is no inconsistency between the provisions of ARH SEPP and cl 4.6 in LEP 2014. 12. The respondent does not accept that a cl 4.6 variation request is not required. The agreement of the parties is based on an acceptance of the merits of the filed requests to vary the height and FSR development standards to facilitate the development. 13. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2014 prepared by Willow Tree Planning Pty Ltd, dated 6 May 2020. This request accords with the amended plans and seeks a variation to the FSR standard. I reviewed the request and in accordance with cl 4.6 of LEP, I am satisfied that: 1. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2014). 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the FSR standard (cl 4.6(3)(b) of LEP 2014). 3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2014 are met. 4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the B4: Mixed Use Development zone and the FSR development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2014 are met. 5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 6. The states of satisfaction required by cl 4.6 of the LEP 2014 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR control. 1. Further, the Applicant has filed a written request pursuant to cl 4.6 of LEP 2014 prepared by Willow Tree Planning Pty Ltd, dated 6 May 2020. This request accords with the amended plans and seeks a variation to the height standard. I reviewed the request and in accordance with cl 4.6 of WLEP, I am satisfied that: 1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2014). 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of LEP 2014). 3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2014 are met. 4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the B4: Mixed Use Development zone and the height development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2014 are met. 5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 6. The states of satisfaction required by cl 4.6 of the LEP 2014 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control. 1. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.