Land and Environment Court New South Wales Medium Neutral Citation: Seehusen v Inner West Council [2021] NSWLEC 1383 Hearing dates: Conciliation conference on 27 May 2021, final agreement filed 27 May 2021 Date of orders: 2 July 2021 Decision date: 02 July 2021 Jurisdiction: Class 1 Before: Pullinger AC Decision: The orders of the Court are: (1) The Applicants are granted leave to amend Development Application DA/2020/0669 and rely upon the amended plans referenced in condition number 4 at Annexure 'A'. (2) The appeal is upheld. (3) Consent is granted to Development Application DA/2020/0669 for alterations and additions to the existing dwelling on land identified as Lot 4 in Deposited Plan 442807 and known as 4 Sardinia Place, Birchgrove NSW 2041, subject to the conditions of consent included at Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – dwelling house – alterations and additions – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Leichhardt Local Environmental Plan 2013, cll 2.3, 4.3A, 4.4, 5.10, 6.1, 6.2, 6.3, 6.4 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 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021) Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: David Benjamin Seehusen (First Applicant) Rosemary Camilla Jones (Second Applicant) Inner West Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicants) S Allam (Solicitor) (Respondent) Solicitors: Bartier Perry Lawyers (Applicants) Inner West Council (Respondent) File Number(s): 2021/33708 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA/2020/0669 (DA) by Inner West Council (the Respondent). The DA sought consent for alterations and additions to the existing dwelling, including rear extensions at land identified as Lot 4 in Deposited Plan 442807 and known as 4 Sardinia Place, Birchgrove NSW 2041 (the site). 2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 May 2021. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams. 4. Prior to the conciliation conference, the Applicants prepared a set of amended plans, on a without prejudice basis, to amend the proposal in an attempt to resolve the contentions raised by the Respondent. These amended plans formed the subject of the conciliation conference. 5. 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 the final amended proposal, subject to conditions. 6. Whilst the final amended proposal remains largely consistent with the original DA, a series of amendments cumulatively resolve the contentions raised by the Respondent, which in turn relate primarily to streetscape, built form and scale, and landscape amongst other contentions. 7. In summary, the agreed amendments have the effect of lowering the overall height of the first floor roof form by 530mm, amending the resultant roof form to present as a traditional pitched form, amending the materials and finishes to be more consistent with those of the immediate context, and introducing a landscape plan reflecting discussions between the parties' arboricultural experts. Agreed conditions of consent further protect neighbouring properties at 2 and 6 Sardinia Place and 31 Cove Street, Birchgrove. 8. 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. 9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 10. In that regard, I am satisfied the DA was made with the consent (in writing) of the registered proprietors of the site, being the Applicants in these proceedings. 11. 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 final amended proposal, characterised as a dwelling house, is permissible with consent. 12. I am satisfied the final amended proposal meets the R1 zone objectives set out at cl 2.3(2) of the LLEP because it contributes to the provision of housing compatible with the character and style of surrounding buildings, streetscapes and landscaped areas, and because the final amended proposal reduces its earlier proposed bulk and scale. 13. The amended proposal is consistent with all relevant development standards set out within the LLEP, specifically landscaped area (cl 4.3A(3)(a)(i)) and site coverage (cl 4.3A(3)(b)), and the maximum floor space ratio (cl 4.4(2B)(b)(ii)). 14. Clause 5.10 of the LLEP - Heritage conservation - sets out matters to be considered prior to any grant of consent. The site is situated within the Birchgrove and Ballast Point Heritage Conservation Area and is in the proximity of a number of listed items identified in the Heritage Map and in Schedule 5 of the LLEP. The parties agree, and I am satisfied, the final amended proposal satisfactorily resolves the Respondent's contentions and the issues set out at cl 5.10(4) have been appropriately considered. 15. Clause 6.1 of the LLEP - Acid sulfate soils - sets out a series of considerations regarding development with a potential to disturb acid sulfate soils. The final amended proposal is situated on land identified as Class 5 on the Acid Sulfate Soils Map and is located within 500m of Class 2 land for the purposes of cl 6.1 of the LLEP. However, the parties agree and I am satisfied, that since the amended proposal does not involve works below 5m AHD and will not alter the water table below 1m AHD on adjacent Class 2 land, the amended proposal does not enliven this clause of the LLEP. 16. Clause 6.2 of the LLEP - Earthworks - sets out matters to be considered prior to any grant of consent. The parties agree, and I am satisfied, the final amended proposal involves a minor amount of excavation and has appropriately considered the matters set out at cl 6.2(3)(a) to (h). Appropriate conditions of consent have been imposed to mitigate against excavation risks. 17. Clause 6.3 of the LLEP - Flood planning - sets out matters to be considered prior to any grant of consent. The parties agree, and I am satisfied the final amended proposal is not situated on land identified on the Flood Planning Map for the purposes of cl 6.3(2). 18. Clause 6.4 of the LLEP - Stormwater management - sets out matters to be considered prior to any grant of consent. The parties agree, and I am satisfied the final amended proposal is acceptable. Appropriate conditions of consent have been imposed to ensure erosion and sediment control is undertaken. 19. I am satisfied State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The parties agree the site and its immediate vicinity have historically been used for residential purposes not typically associated with activities that might result in contamination of the land. As such, I am satisfied cl 7 of SEPP 55 has been appropriately addressed. 20. The parties agree, and I am satisfied, a BASIX Certificate has been submitted in support of the amended proposal, fulfilling the necessary requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The BASIX Certificate does not require further amendment given the minor nature of the final amendments. Conditions of consent have been imposed to ensure compliance with the BASIX Certificate. 21. The site is located within the Sydney Harbour Catchment as defined by Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP). However, the Site is not located within the Foreshores and Waterways Area or a wetlands protection area and is not identified as a strategic foreshore site or a heritage item listed under the SREP. The Site is also not located in the vicinity of a heritage item listed under the SREP. The parties agree, and I am satisfied, the final amended proposal is consistent with the objectives of the SREP. 22. I am satisfied State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) is an additional relevant environmental planning instrument and gives effect to tree preservation provisions of the Leichhardt Development Control Plan 2013 (DCP). The final amended proposal includes a landscape plan that reflects discussions between the parties' expert arborists. The landscape plan includes for the removal of two identified trees, the retention of three identified trees, and pruning of one further tree. Upon completion adequate landscape provision will ensure the viability of retained trees. 23. Finally, in accordance with s 4.15(1) of the EPA Act, the parties agree, and I am satisfied, the final amended proposal may be granted consent, and in considering and responding to submissions from objectors, the final amended proposal is in the public interest. 24. 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 orders of the Court are: 1. The Applicants are granted leave to amend Development Application DA/2020/0669 and rely upon the amended plans referenced in condition number 4 at Annexure 'A'. 2. The appeal is upheld. 3. Consent is granted to Development Application DA/2020/0669 for alterations and additions to the existing dwelling on land identified as Lot 4 in Deposited Plan 442807 and known as 4 Sardinia Place, Birchgrove NSW 2041, subject to the conditions of consent included at Annexure 'A'. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (297946, 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: 02 July 2021