Zaki v Inner West Council [2020] NSWLEC 1559

Land and Environment Court New South Wales

Medium Neutral Citation: Zaki v Inner West Council [2020] NSWLEC 1559 Hearing dates: Conciliation conference on 6 November 2020 Date of orders: 16 November 2020 Decision date: 16 November 2020 Jurisdiction: Class 1 Before: Clay AC Decision: See orders at [19] Catchwords: DEVELOPMENT APPLICATION – demolition of dwelling – alterations and additions to existing child care centre – conciliation conference – agreement between the parties – orders Legislation Cited: Education and Care Services National Regulations 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 (Educational Establishment and Child Care Facilities) 2017 State Environmental Planning Policy No 55—Remediation of Land Cases Cited: Child Care Planning Guideline Category: Principal judgment Parties: Maged Zaki (Applicant) Inner West Council (Respondent) Representation: Counsel: M Staunton (Applicant) S Turner (Solicitor) (Respondent)

Solicitors: Swaab (Applicant) Inner West Council (Respondent) File Number(s): 2020/246232 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal by the Respondent of Development Application DA 2020/0508 (development application) for the demolition of the existing building at 12 Waterloo Street, Rozelle, and alterations and additions to an existing child care centre approved on Lot 11 Deposited Plan 603461 at Lot 6 Deposited Plan 424 and known as 6 – 12 Waterloo Street, Rozelle (the site). 2. On 6 November 2020, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). 3. At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to amend the development application and to grant development consent. 4. On 6 November 2020, the parties lodged an agreement pursuant to s 34 of the Court Act giving effect to the agreement in principle. 5. The essence of the development application is to extend the existing childcare centre from 6 – 10 Waterloo Street into 12 Waterloo Street after the demolition of the existing dwelling at 12 Waterloo Street. The number of children at the centre will be increased from 74 to 105 because additional play area at ground level on 12 Waterloo Street will be provided. The alterations and additions will also enable an additional 3 parking spaces to be provided. 6. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 7. The parties' agreement involves the Court exercising the function under s 4.16 of the EP&A Act to grant the application to grant development consent. The following matters are the matters of relevance to the exercise of that power jointly submitted by the parties. 8. The Leichhardt Local Environmental Plan 2013 (LEP) applies to the site. Under the LEP, the site is zoned R1 General Residential and part B2 Local Centre. The proposed development is permissible with consent in the R1 and B2 zones. 9. No height limit is prescribed under the LEP for the site. The relevant clauses of the LEP are considered in the following table: Clause Requirement Proposal Floor Space Ratio cl 4.4 A maximum floor space ratio (FSR) of 1:1 is identified for the site applying to the B2 zone and 0.7:1 to the R1 zone. The proposal has an FSR of 0.642:1 and complies with cl 4.4. This includes part of the upper level play area that is roofed. Heritage Conservation (5) Heritage assessment. The consent authority may, before granting consent to any development— cl 5.10 (a) on land on which a heritage item is located, or The site is not identified as a heritage item, it is not located within a heritage conservation area, however it is located adjacent to a heritage listed item on its south eastern boundary. See the heritage map extracted on page 14 of the SEE located behind Tab 4 of the Class 1 Application. (b) on land that is within a heritage conservation area, or The proposed alterations and additions will be mainly internal, particularly with the regard to the boundary adjacent to the heritage item therefore it is considered unlikely that the heritage item will impact the proposal. (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. Stormwater Management (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development— The development application is accompanied by stormwater plans, a copy of which are behind Tab 12 of the Class 1 Application. An amended stormwater plan has also been prepared in response to contention 3 of Council's SOFACs. cl 6.4 (a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and Condition 25 requires that the stormwater design generally be carried out in accordance with the approved engineering plans. (b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and Council is satisfied that the proposed stormwater design has been designed in such a manner that satisfies cl 6.4 of the LEP. (c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact. Earthworks (3) Before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters— a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, b) the effect of the development on the likely future use or redevelopment of the land, This application seeks consent for minor excavation associated with the alterations and additions works to the existing commercial building. c) the quality of the fill or the soil to be excavated, or both, It is considered that the proposed excavations, will have minimal adverse environmental or amenity impacts. cl 6.2 d) the effect of the development on the existing and likely amenity of adjoining properties, It is also considered that the proposal will result in an appropriate outcome given the nature of the development, the unique characteristics of the site and the proposed compliance with relevant controls. e) the source of any fill material and the destination of any excavated material, In addition, it is considered unlikely due to the location of the site that excavation will lead to the disturbance of relics. f) the likelihood of disturbing relics, g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.