Land and Environment Court New South Wales Medium Neutral Citation: Grigg v Inner West Council [2021] NSWLEC 1061 Hearing dates: Conciliation conference on 28 and 29 January 2021, final agreement filed 10 February 2021 Date of orders: 16 February 2021 Decision date: 16 February 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) The Applicant is granted leave to amend Development Application No. DA/2020/0364 and rely upon the following amended plans and documents, which are referenced in Condition 1 at Annexure 'A'. (2) The applicant's request pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013 (prepared by Weir Phillips Heritage and Planning and dated 29 January 2021 in relation to the landscaped area standard at clause 4.3A(3)(a)(ii) of the Leichhardt Local Environmental Plan 2013), is upheld. (3) The appeal is upheld. (4) Development Application number DA/2020/0364 for alterations and additions to the existing dwelling, including new attic bedroom and side roof terrace (as amended) on land identified as Lot Y in Deposited Plan 402741 and known as 191 Darling Street, Balmain NSW 2041, is approved in accordance with the conditions included at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – conciliation con-ference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy (Building Sus-tainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land 1998 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 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 Category: Principal judgment Parties: Simon Geoffrey Grigg (Applicant) Inner West Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Bartier Perry Pty Ltd (Applicant) Inner West Council (Respondent) File Number(s): 2020/289473 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA/2020/0364 (DA). The DA sought consent for alterations and additions to an existing dwelling, including a new attic bedroom and side roof terrace (the proposal) at 191 Darling Street, Balmain (the site) by Inner West City (the Respondent). 2. The Court arranged a conciliation conference and hearing under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 and 29 January 2021. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. 5. Whilst the amended proposal remains largely consistent with the original proposal - being for alterations and additions to an existing dwelling, including a new attic bedroom and side roof terrace - a series of relatively minor amendments cumulatively resolve the contentions raised by the Respondent, which in turn related primarily to heritage, streetscape presentation and privacy issues. 6. The agreed amendments include: 1. The deletion of the western dormer window, instead retaining an existing skylight. 2. A simplification in the form of the proposed eastern dormer and a reduction in its width by 450mm. 3. A reduction in the trafficable area of the roof terrace and substitution of a glass balustrade for simple metal balustrade. 4. The repair, or replacement as appropriate, of the existing slate roofing material. 1. 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. 2. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 3. In that regard, the parties agree, and I am satisfied, the Leichhardt Local Environmental Plan 2013 (LLEP) is a relevant environmental planning instrument. The site is zoned R1 General Residential, and the amended proposal is permissible with consent. 4. Evidence of owner's consent has been provided with documentation accompanying the Class 1 appeal. 5. The respondent placed the proposal on public notification between 28 May 2020 and 11 June 2020, and received one submission in objection, which raised issues of visual privacy as a result of the proposed western dormer window and heritage impacts due to the proposed replacement of slate roofing material. 6. The author of the objecting submission made similar representations via Microsoft Teams during the conciliation conference on 28 January 2021. 7. I am satisfied the amended proposal now resolves the concerns of the objector since the western dormer window is to be deleted and the slate roof will be retained, repaired or replaced. 8. I am satisfied State Environmental Planning Policy 55—Remediation of Land is an additional relevant environmental planning instrument. The parties agree and I am satisfied the site is suitable for the proposed development on account of it involving works only at first floor level and above, and since no excavation or disturbance of ground material is proposed. 9. The parties agree and I am satisfied that a BASIX Certificate has been submitted in support of the proposal and is unaffected by the proposed amendments, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 10. I am satisfied State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 is a relevant consideration and gives effect to tree preservation provisions of the Leichhardt Development Control Plan 2013 (DCP). The amended proposal does not seek to remove any vegetation protected under the DCP. 11. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) and associated maps situate the site within the Sydney Harbour Catchment. The site is not located within the Foreshores and Waterways Area, nor is it located within a wetland protection area or identified as a strategic foreshore site. The site is not an identified heritage item under the SREP and is not located in the immediate vicinity of an identified heritage item. The parties agree and I am satisfied the amended proposal meets the relevant aims of the SREP. 12. The amended proposal is consistent with all relevant development standards set out within the LLEP, with the exception of cl 4.3A(3) which relates to the provision of landscaped area with the R1 Zone. The amended proposal, which is primarily contained within the existing roof form, seeks to vary this development standard in order to maintain the existing extent of landscaped area currently evident at the site. 13. Clause 4.6(3) of the LLEP requires consideration of a written request from the applicant demonstrating compliance with a development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. 14. Clause 4.6(4) of the LLEP requires the consent authority to be satisfied the applicant's written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out. 15. Additionally, cl 4.6(4)(b) of the LLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. 16. The applicant has provided a cl 4.6 written request, prepared by Weir Phillips Heritage and Planning and dated 29 January 2021, seeking to justify non-compliance with the development standard set out in cl 4.3A(3)(a)(ii) of the LLEP and to demonstrate the R1 zone objectives set out in the LLEP have been met despite the non-compliance. 17. The parties agree the existing site can be characterised as shop top housing, permissible with consent within the R1 Zone of the LLEP. Further, the relatively unconventional site geometry, the existing extent of site coverage and ground level configuration means that currently, only a small percentage of the total site area is allocated as landscaped area. The amended proposal involves no change of use, no alterations or additions at ground level, and does not alter the existing extent of non-compliance. I am satisfied the resultant building form and general arrangement of the amended proposal will be largely indistinguishable from the existing situation. 18. As I am satisfied the matters in cl 4.6(4) have been adequately addressed, and similarly, satisfied the matters required in cl 4.6(5) have been adequately considered, by reason of s 39(6) of the LEC Act, I determine to uphold the proposed variation to the relevant LLEP development standard. 19. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. Orders 1. The Court orders that: 1. The Applicant is granted leave to amend Development Application No. DA/2020/0364 and rely upon the following amended plans and documents, which are referenced in Condition 1 at Annexure 'A'. 2. The applicant's request pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013 (prepared by Weir Phillips Heritage and Planning and dated 29 January 2021 in relation to the landscaped area standard at clause 4.3A(3)(a)(ii) of the Leichhardt Local Environmental Plan 2013), is upheld. 3. The appeal is upheld. 4. Development Application number DA/2020/0364 for alterations and additions to the existing dwelling, including new attic bedroom and side roof terrace (as amended) on land identified as Lot Y in Deposited Plan 402741 and known as 191 Darling Street, Balmain NSW 2041, is approved in accordance with the conditions included at Annexure 'A'. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (191520, 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: 16 February 2021