Land and Environment Court New South Wales Medium Neutral Citation: Grant v Inner West Council [2021] NSWLEC 1341 Hearing dates: Conciliation Conference on 24 May 2021 Date of orders: 10 June 2021 Decision date: 10 June 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) Condition 7 is amended as follows: Prior to the issue of a Construction Certificate, the Certifying Authority is required to be provided with amended drawings that demonstrate the kitchen layout to show the location of the former chimney breast in permanent materials such as plaster board for ceiling, tiling or other floor finishes for the floor. It is recommended that some of the brickwork be retained where practical. (2) The appeal is upheld. (3) Development Application number DA/2020/0606 for alterations and additions to an existing dwelling, including an attached studio to an existing garage on land identified as Lot 5 in Deposited Plan 2681 and known as 108 Victoria Street, Ashfield NSW 2131, is approved in accordance with the conditions included at Annexure 'A'. Catchwords: DEVELOPMENT APPEAL – residential – amending conditions of consent – heritage – orders Legislation Cited: Ashfield Local Environmental Plan 2013, cl 5.10 Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, s 34 Texts Cited: Inner West Comprehensive Development Control Plan 2016 Category: Principal judgment Parties: Bridget Grant (First Applicant) Leonardo Cirillo (Second Applicant) Inner West Council (Respondent) Representation: Counsel: S Patterson (Solicitor) (Applicants) S Turner (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicants) Inner West Council (Respondent) File Number(s): 2020/351530 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 – Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the conditions of consent imposed on a development consent no DA/2020/0606 which granted consent for the alterations and additions to an existing dwelling including an attached studio to an existing garage at 108 Victoria Street, Ashfield legally described as Lot 5 DP 2681 (the Site). The Applicant seeks the amendment of Condition 7 of DA/2020/0606 by the deletion of paragraphs 1, 2, 3, and 5. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 May 2021. I presided over the conciliation conference. 3. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. 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 parties identified the jurisdictional prerequisites of relevance in these proceedings to be as set out in the Respondent's Written Submissions filed 21 May 2021, namely cl 5.10 of the Ashfield Local Environmental Plan 2013 (ALEP). 5. The parties explained orally how the jurisdictional prerequisites have been satisfied. 6. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 7. The Applicant seeks the amendment of Condition 7 of DA/2020/0606 by the deletion of paragraphs 1, 2, 3, and 5 as the requirement to retain the kitchen fireplace and chimney above up to the roofline is unreasonable and unnecessary having regard to the objectives contained within Chapter E1 Heritage Items and Conservation Areas (excluding Haberfield) of the Inner West Comprehensive Development Control Plan 2016 (IWCDCP). 8. The Site is listed as a local heritage item (Heritage Item No 329, namely 'House') under the ALEP. 9. Condition 7 of DA/2020/0606 provides as follows: "7. Ad-Hoc General Condition 1 Prior to the issue of a Construction Certificate, the Certifying Authority is required to be provided with amended drawings and a sign off from a registered heritage architect that demonstrate the retention of the retention of the kitchen fireplace and the chimney above up to the roofline. The heritage architect is to confirm the extent of survival of the masonry of the fireplace and chimney above once the later plaster board has been removed. Minor alterations can be undertaken to allow the chimney to function as an operable vent during the summer, to draw warm air upwards and be closed off during the winter to prevent draughts. It is recommended that a ventilator be installed on the roof to facilitate air movement. Evidence of the scale and form of chimney is to be retained in the first floor room however the chimney can be reconfigured to provide ventilation in the summer, ie to draw warm air upwards. The proposed bi-fold to the rear elevation (W01) are to be installed utilising the openings created by the existing windows, with only the masonry that separates the two windows removed. To ensure that the best heritage outcome is obtained the sign off is to be provided by an independent heritage architect." 1. Clause 5.10(4) of the ALEP provides: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 1. I have considered the Joint Expert Report prepared by Heritage Expert Witnesses James Phillips for the Applicant and Dr Noni Boyd for the Respondent filed 21 May 2021 and am satisfied that the effect of the consent on the local heritage item has been appropriately considered for the following reasons: 1. The location of the kitchen chimney breast is an element that is part of the original configuration of the building and the location is of significance, demonstrating how the building, designated as a local heritage item, was designed and used. 2. The chimney itself was removed some years prior resulting in the redundancy of one of the original benefits of retention of this element being ventilation in summer. 3. The design changes agreed between the parties Heritage Experts is for amended drawings that demonstrate the kitchen layout to show the location of the former chimney breast in permanent materials such as plaster board for ceiling, tiling or other floor finishes for the floor. It is recommended that some of the brickwork be retained where practical. 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. Orders 1. The Court orders that: 1. Condition 7 is amended as follows: Prior to the issue of a Construction Certificate, the Certifying Authority is required to be provided with amended drawings that demonstrate the kitchen layout to show the location of the former chimney breast in permanent materials such as plaster board for ceiling, tiling or other floor finishes for the floor. It is recommended that some of the brickwork be retained where practical. 1. The appeal is upheld. 2. Development Application number DA/2020/0606 for alterations and additions to an existing dwelling, including an attached studio to an existing garage on land identified as Lot 5 in Deposited Plan 2681 and known as 108 Victoria Street, Ashfield NSW 2131, is approved in accordance with the conditions included at Annexure 'A' ………………………. E Espinosa Commissioner of the Court Annexure A (206647, 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: 10 June 2021