Land and Environment Court New South Wales Medium Neutral Citation: Quarello v Inner West Council [2020] NSWLEC 1422 Hearing dates: Conciliation conference on 7 September 2020 Date of orders: 11 September 2020 Decision date: 11 September 2020 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) Leave is granted to the applicant to amend the development application and rely on the amended plans listed in condition 4 of Annexure A. (2) The appeal is upheld. (3) Development consent is granted to development application D/2019/313 for demolition of existing building and construction of a new dwelling at 7 Dock Road, Birchgrove is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – heritage conservation – amenity – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: Joseph Quarello (Applicant) Inner West Council (Respondent) Representation: Counsel: J Reid (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Inner West Council (Respondent) File Number(s): 2019/387373 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) D/2019/313 by Inner West Council (hereafter the Council), which seeks alterations and additions to the ground floor and first floor of an existing dwelling on Lot A DP 78717, also known as 7 Dock Road, Birchgrove (hereafter the site). 2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 September 2020. I presided over the conciliation conference. There were no objectors whom spoke at this conciliation. 4. Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the supporting plans to the DA, to be relied upon in the granting of consent to the DA under appeal. Leave is granted by the Court, unopposed by the respondent, to amend the plans supporting the DA under appeal. 5. Based on these amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA D/2019/313 with conditions. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA D/2019/313 with conditions, as described in Annexure A. 7. The parties identified the jurisdictional prerequisites of particular relevance to the Court to be satisfied to grant consent in these proceedings, pursuant to the EPA Act, as consistency with the: State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); and Leichhardt Local Environmental Plan 2013 (LLEP). In addition, the Leichhardt Development Control Plan 2013 (LDCP) is of consideration to grant consent to the DA. 8. The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate relevant to the proposed development is identified in the conditions of consent, in compliance with the SEPP BASIX provisions. 9. The site is located within the R1 General Residential Zone, as described in the LLEP. The proposed development is permissible in the zone. The parties agree that the relevant provisions of the LLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The objectives of the zone are satisfied. 10. The site is located within the Town of Waterview Heritage Conservation Area (C4), as described in Schedule 5 to the LLEP. Therefore, cl 5.10(4) requires satisfaction to grant consent, which considers the effect of the proposed development of the heritage significance of the nearby heritage conservation area. The parties agree that based on expert discussion and the amended design, as shown on the amended plans, the requirements of cl 5.10 are satisfied. This contention is resolved. 11. The parties agree that all relevant development standards as described in the LLEP have been satisfied by the proposed development. 12. Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the LDCP are achieved to the satisfaction of the parties. The parties agree that the amended plans address any potential amenity impacts that would warrant refusal of the DA. 13. The proposed development was publicly notified in accordance with the LDCP. During the initial notification period, three submissions were received by Council, whom raised issues relating to privacy and setbacks. The parties are satisfied these issues are resolved and that the amended plans respond to relevant concerns raised by the residents. The parties agree that the requirements of the LDCP are complied with, based on the amended plans, supporting documents to the DA and conditions of consent. 14. Based on the amended plans and supporting documents to the DA, the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties. The parties explained to the Court that they have undertaken the relevant merit assessments as required to reach this agreement. 15. I am satisfied that there are no jurisdictional impediments to this agreement and that DA D/2019/313 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 16. 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. 17. The Court orders that: 1. Leave is granted to the applicant to amend the development application and rely on the amended plans listed in condition 4 of Annexure A. 2. The appeal is upheld. 3. Development consent is granted to development application D/2019/313 for demolition of existing building and construction of a new dwelling at 7 Dock Road, Birchgrove is approved subject to the conditions in Annexure A. ………………………… Sarah Bish Commissioner of the Court Annexure A (272617, pdf) Plans (7929098, 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: 15 September 2020