Land and Environment Court New South Wales Medium Neutral Citation: Perry v Inner West Council [2021] NSWLEC 1146 Hearing dates: Conciliation conference 5 March 2021 Date of orders: 19 March 2021 Decision date: 19 March 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No. DA2020/1036 for alterations and additions to the existing building at 168-170 Australia Street, Newtown (Lot 21 DP 7) to provide 2 x semi detached dwellings and the Torrens Title subdivision of these dwellings is approved subject to the conditions of consent in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – alterations to existing buildings – subdivision – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000 cl 49 Land and Environment Court Act 1979 s 34 Marrickville Local Environmental Plan 2011 cll 2.7, 5.10, 6.2, 6.3, 6.4, 6.5 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land cl 7 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Category: Principal judgment Parties: James Perry (First Applicant) George Perry (Second Applicant) Inner West Council (Respondent) Representation: Counsel: M Driscoll (Solicitor) (Applicants) S Turner (Solicitor) (Respondent) Solicitors: BCP Lawyers & Consultants (Applicants) Inner West Council (Respondent) File Number(s): 2021/21988 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act") by Mr James and Mr George Perry ("the Applicants") against the Respondent's deemed refusal of development application DA/2020/1036. The development application seeks consent for alterations and additions to an existing building to provide two semi-detached dwellings and Torrens Title subdivision. The development is proposed at 168-170 Australia Street, Newtown (Lot 21 DP 7). 2. 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. 3. The appeal was listed for conciliation on 5 March 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 ("LEC Act"). 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 was acceptable to the parties on the basis of amended plans. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 4 March 2021. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), consent has been provided by the owners of the land the subject of the Development Application. 2. Pursuant to clause 7(1) of State Environmental Planning Policy 55— Remediation of Land (SEPP 55), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The Respondent, as consent authority to the DA, has considered whether the Site is contaminated and is satisfied that the Site is suitable for the Proposal, on account of it involving works to a residential property with a long history of residential use. The Court, as consent authority can be similarly satisfied. 3. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 4. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) concerns the protection/removal of vegetation identified under the Vegetation SEPP. The proposed development seeks consent to remove one tree in the rear yard. A number of conditions are imposed in relation to tree protection and the I am satisfied that with reference to the Vegetation SEPP the proposed development is acceptable. 5. Pursuant to Marrickville Local Environmental Plan 2011 (LEP 2011) the Site is zoned R2 – Low Density Residential. Semi-detached dwellings are a form of residential accommodation which is permissible with consent in the zone. In determining the development application, I have had regard to the objectives of the R2 – Low Density Residential zone. 6. Pursuant to cl 2.7 of LEP 2011, demolition is permissible with consent. 7. The proposed development is compliant with the development standards for height and floor space ratio in LEP 2011. 8. The Site is identified as a contributory building and is located within the C11 – North Kensington Estate Heritage Conservation Area (HCA) under LEP 2011. Pursuant to cl 5.10(4) of LEP 2011 the consent authority, or the Court exercising the functions of the consent authority, is to consider the effect of the proposal on the heritage significance of the item, as well as the HCA before granting consent. I am satisfied that the proposed development will not have a detrimental impact on the heritage significance of the item or the HCA. 9. The Site is classified as Class 5 acid sulphate soils land. While located within 500 metres of a small area of Class 2 land, the proposed development does not involve works below 5 metres Australian Height Datum and will not lower the water table below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. Therefore, the Proposal does not require consent under cl 6.1 of LEP 2011. 10. The proposed development does not include any earthworks for the purpose of cl 6.2(3) of LEP 2011. 11. Pursuant to cl 6.3(3) of LEP 2011, development consent must not be granted unless the consent authority is satisfied of the flood planning matters identified under (a) to (e) of the clause. The Site is not a flood affected lot. 12. Pursuant to cl 6.4(3) of LEP 2011, development consent must not be granted unless the consent authority is satisfied of the stormwater management matters identified under (a) to (c) of the clause. Having considered such matters, I am satisfied that the proposed development is acceptable subject to conditions. 13. Clause 6.5: Development in areas affected by aircraft noise applies to the Site as it located within the ANEF 20 contour. The Applicants have provided an acoustic report for the proposed development, which along with the conditions of consent satisfies the requirements of cl 6.5 of LEP 2011. 14. The application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The appeal is upheld. 2. Development Application No. DA20201036 for alterations and additions to the existing building at 168-170 Australia Street, Newtown (Lot 21 DP 7) to provide 2 x semi-detached dwellings and the Torrens Title subdivision of these dwellings is approved subject to the conditions of consent in Annexure 'A'. ………………………… D M Dickson Commissioner of the Court Annexure A (268947, 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: 19 March 2021