Land and Environment Court New South Wales Medium Neutral Citation: Pantalone v Inner West Council [2021] NSWLEC 1105 Hearing dates: 16 and 17 February 2021 Date of orders: 26 February 2021 Decision date: 26 February 2021 Jurisdiction: Class 1 Before: Bradbury AC Decision: Refer to orders below at [10] Catchwords: APPEAL – development application – dwelling house – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Building & Sustainability Index: BASIX) 2004 Texts Cited: Australian Standard 2021:2015 Acoustics—Aircraft noise intrusion—Building siting and construction Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: Daniel Pantalone (Applicant) Inner West Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) A Pearman (Respondent) Solicitors: Landerer & Company (Applicant) Inner West Council (Respondent) File Number(s): 2020/213224 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for a dual occupancy development involving alterations and additions to an existing two-storey terrace house, the demolition of an existing garage and the construction of a new two-storey dwelling. The site is located in Leichhardt and comprises Lot 1 DP 199877. It is known as 72 Catherine Street; however, the new dwelling is to be constructed at the rear of the site and will front Redmond Street. 2. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) and is an appeal in Class 1 of the Court's jurisdiction. 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. 4. The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 16 February 2021 and concluded on 17 February 2021. I presided over the conciliation conference. 5. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 23 February 2021 and is supported by a Jurisdictional Statement provided by the parties on the same date. The decision involves leave being granted to the applicant to amend the development application and for development consent to be granted subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments bring the footprint of the new dwelling closer to the Redmond Street frontage, and change the roof structure and the height of the wall adjacent to the boundary with the property known as 70 Catherine Street. The effect of these changes is to reduce the privacy and solar access impacts of the proposed development on the property at 70 Catherine Street. 6. 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. 7. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons: 1. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act. 2. The proposed development is for the purpose of a dual occupancy. The site is within zone R1 General Residential under the Leichhardt Local Environmental Plan 2013 (LEP). Development for the purpose of dual occupancy is permissible with development consent on land within that zone. 3. In determining the development application, I have had regard to the objectives of the R1 General Residential zone in the LEP. 4. The proposed development complies with the applicable development standards in the LEP for building height (cl 4.3), landscaped area (cl 4.3A) and floor space ratio (cl 4.4). 5. I have taken into consideration the matters set out in cl 6.2(3) of the LEP in relation to the earthworks associated with the proposed development. 6. I am satisfied that the proposed development satisfies each of the matters set out in cl 6.4 of the LEP concerning stormwater management. 7. Clause 6.8A of the LEP applies to development that the consent authority considers is likely to be adversely affected by aircraft noise and requires consideration of the matters set out in cl 6.8(3) before the development application is determined. In this regard I am satisfied that: 1. The development will result in the creation of a new dwelling affected by aircraft noise; 2. I accept the agreed submission of the parties that the site is an acceptable location for the proposed development having regard to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in Australian Standard 2021—2015 Acoustics—Aircraft noise intrusion—Building siting and construction (AS 2021:2015); 3. I also accept the agreed submission of the parties that the requirements of cl 6.8A(3)(c) are addressed by a proposed condition of consent (Condition 26) with respect to any noise attenuation measures that may be required. I note the parties' agreement that the applicant has provided an acceptable acoustic report which satisfies condition 26 and which will ensure that the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015. 1. State Environmental Planning Policy No 55—Remediation of Land applies to the site. The site has been used for residential purposes for many years. The Council report on the application concluded that "The site has not been used in the past for activities which could have potentially contaminated the site. It is considered that the site will not require remediation in accordance with SEPP 55." I am satisfied that the site is unlikely to be contaminated. 2. In accordance with the provisions of the State Environmental Planning Policy (Building & Sustainability Index: BASIX) 2004, a BASIX Certificate No A364390 dated 22 November 2019 was submitted with the development application. I am satisfied that, in combination with the conditions of consent, the requirements of this Policy have been met. 3. The original development application was notified in accordance with Council's Notifications Policy. The Council received three submissions as a result of the notification. The issues raised by the submissions in relation to visual privacy, overshadowing and streetscape have been addressed in the amended design and conditions of consent. The submissions also raised concerns about parking and traffic congestion. In this regard the Leichhardt Development Control Plan 2013 does not impose a minimum car parking requirement for dwelling houses, and I am satisfied that the low scale nature of the proposed development is unlikely to have a significant impact on traffic congestion in Redmond Street. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. The Applicant is granted leave to amend development application D/2020/3 to rely upon the plans referred to in condition 1 of Annexure A. 2. The appeal is upheld. 3. Development consent is granted to development application D/2020/3 for a new dual occupancy development comprising alterations and additions to the existing two-storey terrace dwelling, the demolition of the existing garage and construction of a new two-storey dwelling accessible via the Redmond Street frontage, subject to the conditions of consent set out in Annexure A. ……………………… A Bradbury Acting Commissioner of the Court Annexure A (245194, 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: 26 February 2021