Land and Environment Court New South Wales Medium Neutral Citation: Romano v Inner West Council [2020] NSWLEC 1393 Hearing dates: Conciliation conference on 20-21 August 2020 Date of orders: 28 August 2020 Decision date: 28 August 2020 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [40] Catchwords: DEVELOPMENT APPLICATION – Impacts on Birchgrove and Ballast Point Road heritage conservation area – site coverage – floor space ratio – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy 55 – Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (July 2020) Leichhardt Development Control Plan 2013 Planning Circular PS 20-002 published by Department of Planning, Industry and Environment Category: Principal judgment Parties: Emma Jane Romano (Applicant) Inner West Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2019/399350 Publication restriction: No Judgment 1. COMMISSIONER: Ms Emma Jane Romano is the owner of 3 Ferdinand Street, Birchgrove (the site) and who now brings an appeal under s8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by the Inner West Council (the Respondent) of Development Application No. D/2019/239 seeking consent for alterations and additions to an existing cottage, erection of a new dwelling with shared access to basement garages and strata title subdivision of property as a dual occupancy (the proposed development). 2. The matter was listed for a conciliation conference under s34AA of the Land and Environment Court Act 1979 ('LEC Act') on 24 July 2020. On 1 July 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court's website. 3. Consistent with the Pandemic Policy, the parties consented to the hearing proceeding by MS Teams, without a site inspection. 4. The conciliation conference commenced on 20 August 2020 and at which I presided. While objector submissions were contained in materials provided by the Council prior to the proceedings, the Court also granted leave to the owners of neighbouring properties at 41 and 43 Cove Street, Birchgrove to join the proceedings at commencement in order to provide oral submissions. 5. The parties were able to resolve a number of matters prior to the proceedings, and during the conciliation, as a result of experts conferring which narrowed the matters in dispute. 6. At the conclusion of the first day of the conciliation conference, the parties reached in-principle 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 conditional development consent to the development application. 7. I adjourned the conciliation conference to permit the Applicant to prepare amended plans and other documents that would allow for the terms of an agreement to be finally settled by the parties. 8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 21 August 2020. 9. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement upholds the appeal in accordance with amended plans and on the basis of two written requests prepared in accordance with cl 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP) for which leave is sought. 10. 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. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [40]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow. 11. The site is located within the R1 General Residential zone identified in the LLEP. Dual occupancy development, as a form of Attached dwellings, are a permissible use. The objectives of the zone are in the following terms: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To improve opportunities to work from home. • To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. • To provide landscaped areas for the use and enjoyment of existing and future residents. • To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. • To protect and enhance the amenity of existing and future residents and the neighbourhood. 1. The proposed development exceeds the site coverage permitted on the site under cl 4.3A(3)(b) of the LLEP, and the Applicant relies upon a written request prepared in accordance with cl 4.6 of the LLEP and authored by Mr John Pagan dated August 2020. 2. The objectives of cl 4.3A of the LLEP are in the following terms: (a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents, (b) to maintain and encourage a landscaped corridor between adjoining properties, (c) to ensure that development promotes the desired future character of the neighbourhood, (d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water, (e) to control site density, (f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space. 1. The site area is 396.5m2 and so a maximum site coverage of 237.9m2 is permitted. The proposed site coverage is 241.6m2 or 61.0%, which does not comply with the development standard. The extent of the non-compliance is 3.7m2, a variation of 1.6% to the standard. 2. However, on the basis of the written request, I am satisfied that it is unreasonable or unnecessary to comply with the numerical standard in the circumstances of this case as the objectives of the development standard are achieved notwithstanding non-compliance with the standard for the following reasons: * In respect of objective (a) of the development standard, the proposed development provides 20.4% landscaped area, and so complies with cl 4.3A(3)(a)(ii) of the LLEP. This area excludes the open space formed by the elevated structure over the drive that includes additional planting which, when considered, provides an area totalling 23.4% of the site. * In respect of objective (b) of the development standard, the landscape plan enhances the landscape between the subject site and adjoining buildings, which is aided by the retention of existing landscape. * In respect of objective (c) of the development standard, the proportion of built form to open area is typical of the local area while being contemporary development that complements the character and scale of the neighbourhood. * In respect of objective (d) of the development standard, the proposed development includes on-site detention of water and will not unreasonably affect the underground flow of water. * In respect of objective (e) of the development standard, the written request states that a separate written request seeks to address an exceedance of FSR, but asserts that the site coverage provision was not changed when, in 2017, the allowable FSR was changed. * In respect of objective (f) of the development standard, the effect of the elevated structure over the drive is that it will read and function as open space outside the footprint of the buildings despite being considered as site coverage. 1. In arriving at an opinion of satisfaction, I note the steep slope of the site, by virtue of its unusually wide street frontage of 26.82m, results in a fall that, despite the stepping of the proposed development down the slope at ground level, exceeds the maximum permissible height over the existing ground level which gives rise to the exceedance. 2. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the standard for the following reasons: 1. The proposal, which relies upon much of the footprint of existing buildings on the site, presents a built form that is compatible with its local context. 2. The provision of carparking, in a form of basement that contributes to the exceedance, reduces the occupants' demand for on-street carparking and, through the removal of an existing kerb crossing, does not adversely impact traffic in Ferdinand Street. 3. The proposed development accommodates two households on the subject site, while complying with the landscaped area required by cl 4.3A(3)(a)(ii) of the LLEP and is consistent with the controls applicable to built form, setbacks, landscaping, private open space and solar access as set out in the Leichhardt Development Control Plan 2013 (LDCP). 4. Unreasonable additional overshadowing does not result on adjoining properties, views are appropriately shared, and existing privacy is maintained between properties. 1. In arriving at a state of satisfaction in relation to the grounds set out above, I have given careful consideration to the matter of view sharing between properties, and solar access, as these are the subject of resident objections. On the basis of photographs provided by the parties, and the resident objectors, and by reference to the drawings, I am satisfied firstly that no additional shadow falls on Nos 41 or 43 Cove Street as a result of the proposed development. I am also satisfied that the location and height of the roof form of the north eastern building, being the tallest point in the proposed development, will not obstruct views of the water because of the height and bulk of the existing building at 16 Rose Street, Birchgrove. 2. For the reasons set out above, I am satisfied that the written request adequately addresses those matters required by cl 4.6(4)(a)(i). I am further and directly satisfied that the contravention of the standard is in the public interest for the reasons set out at [13], and because it is consistent with the zone objectives set out at [11]. 3. In particular, consistency is demonstrated through the balance of built form and landscaped area to the satisfaction of the heritage experts whom I understand consider the outcome to be sympathetic to the existing dwelling, and to the streetscape. In achieving such an outcome, the proposed development does not impose adverse impacts on neighbouring properties and so protects the amenity of existing and future residents. Furthermore, on the basis of the landscape plan, and removal of one kerb crossing, I am also satisfied that the proposed development enhances the amenity of existing and future residents. 4. Finally given the minor nature of the exceedance I am satisfied that the concurrence of the Secretary applies for the reasons set out in the Planning Circular PS 20-002 dated 5 May 2020, and so I conclude that the written request to justify the contravention of cl 4.3A(3)(b) of the LLEP should be upheld. 5. The proposed development also exceeds the FSR permitted by cl 4.4(2B)(b) of the LLEP which is expressed as 0.8:1 and the Applicant relies upon a written request prepared by Mr John Pagan in accordance with cl 4.6 of the LLEP and dated August 2020. 6. The objectives of the standard are set out in cl 4.4(1) as follows: (a) to ensure that residential accommodation— (i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and (ii) provides a suitable balance between landscaped areas and the built form, and (iii) minimises the impact of the bulk and scale of buildings, (b) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale. 1. The proposed development exceeds the maximum permissible FSR by 43.3m2, resulting in an FSR expressed as 0.91:1. 2. I am satisfied that it is unreasonable or unnecessary to comply with the numerical standard in the circumstances of this case as the objectives of the development standard are achieved notwithstanding non-compliance with the standard for the following reasons: 1. In respect of objective (a) of the development standard, firstly, the built form complies with the future character desired for the Birchgrove Distinctive Neighbourhood in Part C2.2.2.6 of the LDCP for the reasons set out on 3 of the written request. Secondly, the proportion of built form to open area is demonstrated by compliance with the landscaped area provisions of the LLEP. Thirdly, the exceedance arises, in part, from the inclusion of car parking that is largely below ground, and an attic that is largely unseen from outside the site. In both cases, these spaces do not contribute to the bulk or scale. 2. Objective (b) of the development standard is not relevant. 1. Next, the written request relies upon the following environmental planning grounds to justify the contravention of the standard: * The elements that generate the non-compliance do not affect the built form as it is perceived from outside the site, and which the heritage experts agree is sympathetic to the streetscape. * The utilisation of the attic employs the volume of the existing dwelling to reduce the need for space elsewhere that would contribute to bulk and scale. * As a result of car parking, an existing kerb crossing is removed to assist the provision of on-street parking without the non-complying aspects of the car park being visible, or having an impact upon, the bulk and scale of the proposed development. 1. I accept that only a portion of the proposed car parking is considered to be FSR and that portion is substantially, or wholly, obscured from view outside the site. Furthermore, the removal of that portion of the car parking would not alter the bulk and scale of the proposed development that is shown over the top of it. I also accept that the attic space creates no external impact other than a small dormer which meets the approval of the heritage experts. For these reasons, and those set out at [26] I am satisfied that the written request adequately addresses those matters at cl 4.6(4)(a)(i). 2. I am also satisfied that the exceedance of the FSR standard is, in this instance and these circumstances, justified as the proposed development is consistent with the objectives of the standard and is also consistent with the zone objectives for the following reasons: * Firstly, the heritage experts agree that the design and arrangement of the proposed development is sympathetic to the character of the heritage conservation area. * Secondly, the provision of dwellings for two households on the site is consistent with the objective to provide a variety of housing types and densities, and this is achieved with the required landscaped area and in conformity with the desired future character controls in the LDCP. * Thirdly and lastly, I am satisfied the above is achieved without imposing adverse impacts on neighbouring properties. As stated at [18], I do not consider the bulk or scale to result in the unreasonable loss of views, or present a form or aspect that contradicts or offends the provisions of the LDCP. 1. I have formed an opinion of satisfaction that the proposal will be in the public interest as required by cl4.6(4)(a)(ii) of the LLEP, and as there is no matter of state or regional planning significance, that the Secretary's concurrence may be assumed in the particular circumstances pursuant to cl 4.6(4)(b) and so the written request to justify the contravention of the FSR development standard should be upheld. 2. The site is located within the 'Birchgrove and Ballast Point Road' heritage conservation area (heritage conservation area) and, as identified in the Heritage Map at cl 5.10 of the LLEP. The provision at cl 5.10(4) of the LLEP, requires that I consider the effect of the proposed development on the heritage significance of the item or area concerned. On the basis of the agreement between the heritage experts, I am satisfied that the proposed development will not adversely impact the heritage conservation area. 3. Clause 6.2(3) of the LLEP, requires that I consider certain matters in respect of earthworks. On the basis of the Geotechnical Investigation Report prepared by Greywacke Geotechnics dated March 2019, I am satisfied that the proposed excavation is considered minor to moderate, and that groundwater is unlikely to be affected. 4. On the basis of the conditions of consent, I am satisfied that the matters at cl 6.3(3) of the LLEP and cl 6.4(3) of the LLEP are adequately addressed in relation to flooding and stormwater management. 5. Clause 3 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) identifies, via the Sydney Harbour Catchment Map, the site is located within the Sydney Harbour Catchment. However, the Site is not located within the Foreshores and Waterways Area or a wetlands protection area. It is not identified as a strategic foreshore site, a heritage item listed under the SREP, or identified as being located in the vicinity of a heritage item listed under the SREP. For these reasons, I consider the proposed development to be acceptable in respect of those matters for consideration in Division 2 of the SREP. 6. In respect of cl 7 of State Environmental Planning Policy 55 – Remediation of Land (SEPP 55), I am satisfied that the subject land has been residential in nature and is, or will be made to be, suitable for the development. 7. I am satisfied that the application is accompanied by a BASIX certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation). 8. The site is legally described as Lot 9 in DP 1102772 in the development application as lodged with the Council. The parties agree this was in error. Deposited Plan 1250969 was registered by the Registrar General of NSW on 21 March 2019. Prior to this, the Site had been identified as Lot 9 in Deposited Plan 1102772. 9. I am satisfied, on the basis of a title search for the Site and a copy of Deposited Plan 1250969 undertaken by the Respondent on 21 August 2020, and confirmation by the Respondent of Council records to the same effect, that the agreement is in respect of the correct parcel of land. 10. 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. 11. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 12. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The Applicant is granted leave to amend Development Application No. D/2019/239 and to rely upon the following amended plans and documents, copies of which are included at Annexure "A": Plan Reference Prepared by Date Drawing No. 2017/03/0.0 – Cover (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.1.1 – Plans-Location, Site, Roof & Site Analysis (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.1.2 – Plan-Basement (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.1.3 – Plan-Ground (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.1.4 – Plan-First (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.2.1 – Elevation-NorthWest (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.2.2 – Elevation-SouthEast (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.2.3 – Elevation-NorthEast No. 3A (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.2.4 – Elevation-SouthWest No. 3 (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.2.5 – Elevation-NorthEast No. 3 (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.2.6 – Elevation-SouthWest No. 3A (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.3.1 – Section AA (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.3.2 – Section BB & DD (Attic Access) (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.3.3 – Section CC (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.3.4 – Driveway Section D-N (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.3.5 – Driveway Section D-S (Issue F) Oikos Architects 24 July 2020 Drawing No. 2017/03/1.4.9 – Additional Shadow Diagrams – No. 41 Cove St Sheet 1 of 2 (Issue H) Oikos Architects 20 August 2020 Drawing No. 2017/03/1.4.10 – Additional Shadow Diagrams – No. 41 Cove St Sheet 2 of 2 (Issue H) Oikos Architects 20 August 2020 Drawing No. 2017/03/1.5.3/A – Area Schedule – Site Cover (Issue G) Oikos Architects 20 August 2020 Drawing No. 2017/03/1.5.4/A – Area Schedule – FSR Summary & GFA: Basement (Issue G) Oikos Architects 20 August 2020 Drawing No. 2017/03/1.5.5 – Area Schedule – GFA: Ground (Issue G) Oikos Architects 19 August 2020 Drawing No. 2017/03/1.5.6/A – Area Schedule – GFA: First (Issue G) Oikos Architects 20 August 2020 Drawing No. 2017/03/1.5.7 – Area Schedule – Landscaped Areas (Issue G) Oikos Architects 19 August 2020 Drawing No. C01 – Civil Works Layout Plan (Issue E) Smart Structures Australia 2 April 2020 Drawing No. C03 – Driveway Long Sections Sheet 1 (Issue C) Smart Structures Australia 2 April 2020 Drawing No. C04 – Driveway Long Sections Sheet 2 (Issue C) Smart Structures Australia 2 April 2020 Drawing No. C05 – Swept Path Diagrams Sheet 1 (Issue E) Smart Structures Australia 2 April 2020 Drawing No. C06 – Swept Path Diagrams Sheet 2 (Issue E) Smart Structures Australia 2 April 2020 Drawing No. C07 – Swept Path Diagrams Sheet 3 (Issue C) Smart Structures Australia 2 April 2020 Drawing No. C10 – Longitudinal Section (Issue B) Smart Structures Australia 2 April 2020 Drawing No. C20 – Existing vs New On-Street Parking Spaces (Issue F) Smart Structures Australia 2 April 2020 Clause 4.6 Submission (Site Coverage) Burrell Threlfo Pagan 20 August 2020 Clause 4.6 Submission (Floor Space Ratio) Burrell Threlfo Pagan 20 August 2020 1. The Applicant's written request to vary the site coverage development standard at clause 4.3A(3)(b) of the Leichhardt Local Environmental Plan 2013, made pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013, is upheld. 2. The Applicant's written request to vary the floor space ratio development standard at clause 4.4(2B)(b)(iii) of the Leichhardt Local Environmental Plan 2013, made pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013, is upheld. 3. The appeal is upheld. 4. Development Application No. D/2019/239 (as amended) for partial demolition and alterations and additions to the existing dwelling, alterations and additions to the existing garage to create a new dwelling and construction of shared basement car parking with strata subdivision on land identified as Lot 9 in Deposited Plan 1250969 [formerly Lot 9 in Deposited Plan 1102772] and known as 3 Ferdinand Street, Birchgrove, be approved subject to the conditions included at Annexure "B". ………………………. Tim Horton Commissioner of the Court Annexure A (17062899, pdf) Annexure B (325270, pdf) ********** 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: 28 August 2020