Land and Environment Court New South Wales Medium Neutral Citation: Cracknell and Lonergan Architects Pty Ltd v Inner West Council [2021] NSWLEC 1605 Hearing dates: Conciliation conference on 7 October 2021 Date of orders: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders – see [15] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7(1) and Sch 1, cl 7 Environmental Planning and Assessment Regulation 2000, cll 55(1), 77 and Sch 1 Land and Environment Court Act 1979, s 34 Leichhardt Local Environmental Plan 2013, cll 2.3, 4.3A, 4.4, 4.6, 5.21, 6.1, 6.2, 6.4, 6.8 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 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: Cracknell and Lonergan Architects Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: M Staunton (Applicant) G Christmas (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Apex Planning and Environment Law (Respondent) File Number(s): 2021/164660 Publication restriction: No Judgment 1. COMMISSIONER: Cracknell and Lonergan Architects Pty Ltd (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of its development application (DA 2020/0427), made with owner's consent, seeking consent for alterations and additions to an existing dwelling (the Proposed Development) at 222 Trafalgar Street, Annandale (the Subject Site). 2. The Subject Site is zoned R1 General Residential under cl 2.3 of Leichhardt Local Environmental Plan 2013 (LLEP). The Proposed Development is permissible with consent on the Subject Site. 3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 7 October 2021, and I presided over the conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken as part of the conciliation conference. 6. 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 consent to the Applicant's development application, subject to conditions. 7. 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. 8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. in relation to the provisions of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP55), the Parties have confirmed, and I accept that: 1. the application does not involve a change in use and there is no concern with respect to contamination; 2. the Council's records are that the past and current use of the Subject Site is as a dwelling house; 3. the Proposed Development does not include any work that would involve excavation of the Subject Site; and 4. having considered whether the land is contaminated, and on the basis of the information provided above (at [8(a)], [8(b)] and [8(c)]) the provisions of cl 7 of SEPP55 are satisfied and no further investigation of the Subject Site is required; 1. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the Applicant has provided BASIX Certificate number: A376056_04 dated 6 October 2021 in satisfaction of the provisions of SEPP BASIX; 2. in relation to the provisions of LLEP, the Parties advise, and I accept that: 1. in relation to cl 4.3 concerning the Height of Buildings (HoB), there is no HoB development standard applicable to the Subject Site under this clause within LLEP; 2. the Applicant has provided a written request prepared by Cracknell and Lonergan Architects, pursuant to the provisions of cl 4.6 of LLEP, to contravene the development standards applicable to the Subject Site under cl 4.3A, concerning landscaped areas for residential accommodation in zone R1, which is well founded, because: 1. notwithstanding that the Proposed Development contravenes the standards in cl 4.3A as it provides a landscaped area of 6.9% of the site area when the standard requires that 15% be provided, and the Proposed Development has a site coverage of 61.6% when site coverage should not exceed 60% of the site area; 2. compliance with the standards in cl 4.3A is unreasonable or unnecessary in the circumstances of this case because the objectives of the standards are achieved notwithstanding the non-compliance, for reasons provided on page 12 of 17 of the Applicant's written request; 3. sufficient environmental planning grounds exist to justify the non-compliance as the variation provides a better design outcome in the context of a constrained site, increasing the landscaped area on the site from a baseline of 0% landscaped area in its current configuration, as defined under the standard, to a level of 6.9% under the Proposed Development, while only increasing the site coverage from 60.95% of the site to 61.6% of the site, and both outcomes are consistent with the objective in s 1.3(g) of the EP&A Act of promoting good design and amenity of the built environment; 4. it is consistent with the objectives of the Subject Site's R1 zoning as the Proposed Development would: provide for the housing needs of the community; provide for a variety of housing types and densities. improve opportunities to work from home; provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas; provide landscaped areas for the use and enjoyment of existing and future residents; protect and enhance the amenity of existing and future residents and the neighbourhood; 1. approval of the Proposed Development will be in the public interest because it is consistent with the objectives of the development standards in cl 4.3A of LLEP, there are sufficient environmental planning grounds to justify the non-compliance with the standards, and the Proposed Development is consistent with the objectives of the R1 zone in which it would be carried out; 1. in relation to cl 4.4 concerning 'Floor Space Ratio' the Proposed Development has a floor space ratio of 0.77:1 which is compliant with the floor space ratio development standard of 0.8:1 pursuant to cl 4.4(2B)(a)(ii) of LLEP; 2. the subject site is within the Annandale Heritage Conservation Area (C1) pursuant to Schedule 5 to LLEP and as required under the provisions of cl 5.10(4), the Parties have considered the effects of the proposed development on the HCA and are of the view that the impacts are acceptable; 3. in relation to cl 6.1 concerning acid sulfate soils, the Subject Site is identified as containing class 5 acid sulfate soils, but the Proposed Development would involve the disturbance of less than 1 tonne of soil, and it is not likely to lower the water table, and so no further assessment is required in relation to acid sulfate soils; 4. the matters identified within subcl 6.2(3) of LLEP concerning earthworks have been considered as required by that clause, and the proposed Development is unlikely to have a detrimental impact on environmental functions and processes, existing drainage patterns or soil stability; 5. the matters identified within subcl 6.3(3) of LLEP concerning flood planning have been considered as required by that clause; 6. in relation to the provisions of subcl 6.4(3) of LLEP concerning stormwater management, the Proposed Development will drain any new works to the existing stormwater system via gravity, and these arrangements are satisfactory subject to the Applicant meeting standard site drainage and stormwater control requirements as stipulated by the Respondent's engineers. To this end the Parties have agreed that a condition of consent, identified as condition 16, should be imposed along with the grant of consent, and as a consequence the Proposed Development has satisfied the matters identified at subcl 6.4(3) of LLEP; 7. the matters identified within subcl 6.8(3) of LLEP concerning development in areas subject to aircraft noise have been considered as required by that clause, and the Parties have agreed that a condition of consent, identified as condition 14, should be imposed to address matters pertaining to these considerations; 1. the Applicant's development application was notified between 10 June and 2 July 2020, consistent with the provisions of cl 77 and Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) and of Leichhardt Development Control Plan 2013. The Respondent advised that matters identified in single submission received in response to notification have been considered by the Parties' in resolving contentions in the appeal. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. I am further 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. 4. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision. 5. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 6. The Parties have advised that: 1. the Inner West Council, as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the application for development consent (DA2020/0427) to rely upon the amended plans and documents in Annexure A (the Amended Application); 2. the amended application was uploaded to the NSW planning portal before 13 October 2021; 3. the Applicant subsequently filed the amended application with the Court before 20 October 2021. Orders 1. The Court orders: 1. the Applicant's written request made pursuant to clause 4.6 of Leichhardt Local Environmental Plan 2013 ("LLEP") to contravene the landscape area and site coverage development standards contained in cl 4.3A(3) of LLEP, prepared by Cracknell & Lonergan Architects dated 17 September 2021, is upheld; 2. the Appeal is upheld. 3. development application DA 2020/0427 for alterations and additions to the existing dwelling house at 222 Trafalgar Street, Annandale is approved subject to the conditions at Annexure B. 1. The Respondent is directed to upload the development consent to the Planning Portal within 7 days of this judgment. ……………………….. M Chilcott Commissioner of the Court Annexure A (103402, pdf) Annexure B (222320, 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: 15 October 2021