Land and Environment Court New South Wales Medium Neutral Citation: Londish v Inner West Council [2021] NSWLEC 1205 Hearing dates: Conciliation conference on 11 and 12 February 2021, and 2 March 2021 Date of orders: 29 April 2021 Decision date: 29 April 2021 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders: (1) The Applicant is granted leave to amend Development Application No. DA/2020/0712 and rely upon the following amended plans and documents, which are referenced in Condition 1 at Annexure 'A'. (2) The appeal is upheld. (3) Development Application number DA/2020/0712 for ground floor alterations and first floor additions to the existing dwelling, including new garage with studio above and associated works (as amended) on land identified as Lot 37 in Deposited Plan 666421 and known as 39 Llewellyn Street, Marrickville NSW 2041, is approved in accordance with the conditions included at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – Alterations and additions to a dwelling and new garage with studio in a heritage conservation area – conciliation conference – agreement between the parties Legislation Cited: Draft Inner West Local Environmental Plan 2020 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: AS 2021:2015 Acoustics – Aircraft noise intrusion – Building siting and construction Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2020) Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Joshua Londish (Applicant) Inner West Council (Respondent) Representation: Counsel: S Berveling (Applicant) S Turner (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Inner West Council (Respondent) File Number(s): 2020/306317 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Inner West Council (Council) of Development Application No DA/2020/0712 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to a 347.8m2 parcel of land identified as Lot 37 in DP 666421 at 39 Llewellyn Street Marrickville (the site). The DA as submitted to the Council on 17 September 2020 sought consent for refurbishment and alterations to the existing dwelling, a first floor addition to the dwelling and the construction of a double garage with studio above at the rear of the site. The DA was exhibited from 24 September 2020 in accordance with Council's DA notification policy, with six submissions received. 3. On 26 October 2020 the Applicant lodged this Class 1 Appeal with the Court. On 12 November 2020 the Council filed its Statement of Facts and Contentions (SOFC) with the Court. 4. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). In preparation for the proceedings, heritage and town planning experts engaged by each party conferred and produced joint reports. On 9 February 2021 the joint report of the heritage experts (Heritage Joint Report), prepared by Mr James Phillips for the Applicant, and Mr Robert Moore for the Council, was filed with the Court. On 11 February 2021 the joint report of the town planners (Planning Joint Report), prepared by Mr Mark Boutros for the Applicant and Ms Ellen Shannon for the Council, was filed with the Court. 5. I presided over the s 34AA conciliation conference held on 11 and 12 February 2021, and 2 March 2021. The proceedings commenced with a site view attended by me, the experts who had prepared the joint reports and other representatives of the parties. Due to the Court's COVID-19 Pandemic Arrangements Policy (December 2020) (COVID-19 Policy) restrictions in place at the time, and as agreed between the parties, oral submissions from objectors were taken by telephone, after the site view and prior to commencement of the conference. 6. On 12 February 2021 the parties reached an agreement pursuant to s 34(3) of the LEC Act as to the terms of a decision that would be acceptable to them. A signed copy of that agreement was filed with the Court on that day. Accordingly, a hearing under the provisions of s 34AA(2)(b)(i) of the LEC Act was not required. 7. The s34 agreement was based on amended plans. The amendments were made to address matters raised in the SOFC, in the public submissions and during the s 34AA conference. I adjourned the s 34AA conference until 2 March 2021 to allow for checking of the final documentation. Further minor changes were made to the architectural plans, which were submitted to the Court by email on 3 March 2021 along with a revised BASIX Certificate, and amended set of conditions (to reflect the final plans) that form Annexure A to the s34 agreement. On 20 April 2021 the final Annexure A was formally filed with the Court. 8. The main changes between the original plans filed with the Class 1 Application and the final plans referred to in Condition 1 of Annexure A to the s34 agreement are: 1. The first floor extension at the rear of the house has been set back from both side boundaries by 450mm to ensure clearance of the two side boundary chimneys. 2. The new double garage at the rear has been redesigned to: 1. Change the roof form from a south sloping skillion roof to a pitched roof, pitching away from all sides to a central ridgeline running east-west. This creates an attic style space internally, reduces the wall heights and visual impact of the garage and improves solar access to adjoining properties. 2. At ground level provide for a single, combined garage door and a single entry door for pedestrians off the rear lane. 3. At the first floor, relocate the bathroom to the east side of the studio space, remove the laundry and change the window openings. The two small south facing windows are replaced with an enlarged single central dormer window with sill height of 1600mm and the two large north facing windows to the laneway are replaced with much smaller operable skylights in the new pitched roof. A small skylight is also provided to the bathroom and above the stair. These changes to the window openings improve privacy and the visual impact of the second level on the heritage lane streetscape. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The relevant jurisdictional considerations and how they are satisfied have been in written submissions filed with the Court by Council on 12 February 2021. In that document I am advised the Council, having considered the relevant environmental planning instruments and relevant provisions of the Marrickville Development Control Plan 2011 is satisfied the proposal, as amended in the agreement is acceptable, subject to the agreed conditions, and that all the contentions raised in the SOFC have been resolved in full. Satisfaction of jurisdiction 1. The relevant jurisdictional matters have been identified by the parties. In relation to the Marrickville Local Environmental Plan 2011 (MLEP), the relevant provisions are: 1. The development is for the purposes of a dwelling, which is permissible with consent in the R2 Low Density Residential zone (R2 Zone), and is consistent with the aims of the MLEP (at cl 1.2(b), (g) and (h)) and with the objectives of the R2 Zone (cl 2.3(2)). 2. The proposal complies with the 9.5m maximum height of buildings development standard at cl 4.3 of the MLEP, and the maximum floor space ratio (FSR) standard at cl 4.4. No other development standards in the MLEP. 3. The site is located within the Llewellyn Estate Heritage Conservation Area (HCA) and is within the vicinity of (but not adjoining) some items of local heritage significance. A heritage impact assessment was included as part of the Statement of Environmental Effects submitted with the original DA and forming part of the Class 1 Application documentation. The heritage impact was further considered in the Heritage Joint Report and the final plans were amended to take into account the advice of those experts. On that basis, the proposal, as amended, is acceptable in terms of its' impact on the heritage significance of the HCA and any nearby heritage items. Clause 5.10 of the MLEP is therefore satisfied. 4. The site is within the 20 ANEF zone on the Sydney Airport ANEF map and therefore cl 6.5 of the MLEP applies. The development will not result in the creation of a new dwelling or an increase in the number of dwellings or people affected by aircraft noise; the land is acceptable for the use as a house (Table 2.1 of AS 2021:2015 Acoustics – Aircraft noise intrusion – Building siting and construction); and compliance with the indoor design sound levels set out in Table 3.3 of AS 2021:2015 will be required, as provided for in Condition 17 of the consent. 5. The Council has considered and is satisfied that the proposal is acceptable in terms of flood planning and, subject to conditions, is acceptable in terms of its stormwater management (cll 6.3(3) and 6.4(3) respectively). 1. The Draft Inner West Local Environmental Plan 2020 (Draft IWLEP) has been exhibited, and is therefore a matter for consideration. The proposal is acceptable with respect to the Draft IWLEP. 2. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular subcll 7(1) and (2), applies to the land and requires consideration of any contamination and, if necessary any associated remediation. The Council 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. 3. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), a revised BASIX Certificate number A387426_04 dated 03 March 2021 have been provided demonstrating compliance with the BASIX SEPP, and is referenced in the conditions of consent. Disposal of proceedings in accordance with the parties' decision 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' agreement. 2. The Court orders: 1. The Applicant is granted leave to amend Development Application No. DA/2020/0712 and rely upon the following amended plans and documents, which are referenced in Condition 1 at Annexure 'A'. 2. The appeal is upheld. 3. Development Application number DA/2020/0712 for ground floor alterations and first floor additions to the existing dwelling, including new garage with studio above and associated works (as amended) on land identified as Lot 37 in Deposited Plan 666421 and known as 39 Llewellyn Street, Marrickville NSW 2041, is approved in accordance with the conditions included at Annexure 'A'. ………………………….. J Bindon Acting Commissioner of the Court Annexure A (208132, 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: 29 April 2021