Miller v Inner West Council [2020] NSWLEC 1543

Land and Environment Court New South Wales

Medium Neutral Citation: Miller v Inner West Council [2020] NSWLEC 1543 Hearing dates: Conciliation conference on 29 and 30 September 2020 and 16 October 2020 Date of orders: 09 November 2020 Decision date: 09 November 2020 Jurisdiction: Class 1 Before: Espinosa C Decision: Refer to orders below at [18] Catchwords: DEVELOPMENT APPEAL – residential – conciliation conference – desired future character – bulk and scale – landscape, site coverage and FSR development standards non-compliance – cl 4.6 written variation requests – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Category: Principal judgment Parties: Malcolm Miller (Applicant) Inner West Council (Respondent) Representation: Counsel: D Briggs (Solicitor) (Applicant) J McKelvey (Respondent)

Solicitors: DG Briggs and Associates (Applicant) Inner West Council (Respondent) File Number(s): 2020/51315 Publication restriction: No

Judgment 1. COMMISSIONER: This is a Class 1 - Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of a development application - residential No. D/2019/355 seeking approval for the demolition of existing structures and construction of a new three storey residential dwelling, including a basement and studio, and an in-ground swimming pool and associated landscaping works (the Proposed Development) at 8 Charlotte Street, Rozelle, legally described as Lot 10 DP 1257265 (the Site). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29-30 September 2020 and 16 October 2020. I have presided over the conciliation conference. 3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court granting leave to amend the development application and rely on further amended plans, upholding the appeal and granting development consent to the development application subject to conditions. 4. 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' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be cl 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP 2013) to vary development standards as follows: 1. Landscape area (cl 4.3A(3)(a)(i) LLEP 2013: Development consent must not be granted to development which this clause applies unless the development includes landscaped area that comprises at least […] where the lot size is greater than 235 square metres – 20% of the site area) 2. Site Coverage (cl 4.3A(3)(b) LLEP 2013: Development consent must not be granted to development which this clause applies unless the site coverage does not exceed 60% of the site area) 3. Floor Space Ratio (FSR) (cl 4.4(2B)(d) LLEP 2013: FSR on land shown edged yellow on the Floor Space Ratio Map is not to exceed (ii) in the case of development on a lot with an area of 150 square metres or more but less than 300 square metres – 0.8:1) 1. The parties are in agreement that the jurisdictional pre-requisites have been satisfied and they explained how the jurisdictional prerequisites have been satisfied in a written document titled "Consolidated Clause 4.6 Submission". 2. I have read the Consolidated Clause 4.6 Submission and 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. I set out my reasons for this state of satisfaction below.