Unique Developments Pty Ltd v Inner West Council [2021] NSWLEC 1653

Land and Environment Court New South Wales

Medium Neutral Citation: Unique Developments Pty Ltd v Inner West Council [2021] NSWLEC 1653 Hearing dates: Conciliation conference on 3 and 27 September 2021 Date of orders: 27 October 2021 Decision date: 27 October 2021 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to the orders below at [15] Catchwords: DEVELOPMENT APPLICATION – construction of attached dwellings – Torrens subdivision into 7 lots –– conciliation conference – 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 s 34 Marrickville Local Environmental Plan 2011 cll 2.7, 4.3, 4.4, 5.3, 5.10, 5.21, 6.1, 6.4, 6.5 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 (June 2021) Category: Principal judgment Parties: Unique Developments Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: A Whealey (Solicitor) (Applicant) S Turner (Solicitor) (Respondent)

Solicitors: Mills Oakley (Applicant) Inner West Council (Respondent) File Number(s): 2021/174434 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 refusal by the Inner West Local Planning Panel of Development Application No DA/2020/0993 (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 1,086m2 parcel of land identified as Lot 411 in DP 737291 at 29 Gilpin Street, Camperdown (the site). The DA as submitted to the Inner West Council (Council) on 4 March 2021 sought consent for demolition of the existing structures and the construction of seven attached dwellings with associated parking and landscaping and the Torrens title subdivision of the land into seven lots. The DA was notified in accordance with Council's policy over the period 1 to 21 December 2020, resulting in the receipt of 22 objections. 3. On 26 March 2021 revised plans and additional information were provided to Council in response to a request from Council, dated 23 February 2021. The revised plans and additional information were also notified in accordance with Council's policy, between 8 and 29 April 2021, resulting in eight objections. The DA was refused by the Inner West Local Planning Panel on 8 June 2021. 4. On 17 June 2021 the Applicant lodged this Class 1 Appeal with the Court. On 14 July 2021 the Council filed its Statement of Facts and Contentions (SOFC). The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, held on 3 and 27 September 2021. Due to the Court's COVID-19 Pandemic Arrangements Policy (June 2021) (COVID-19 Policy) restrictions in place at the time there was no site view undertaken as part of the proceedings. Oral submissions from objectors were taken via MS Teams prior to commencement of the conference. 5. Amendments to the plans, prepared by ES Design, Revision G dated 24 September 2021 (the final plans) were then made to address the matters raised in the SOFC, concerns raised by Council during the s34 conference and by the public in the oral and written submissions. The final plans and other documents that comprised the amended DA, including an Amended Landscape Planting Plan dated 14 September 2021, amended Stormwater Plans dated 15 September 2021 and amended BASIX certificates, dated 23 September 2021, were lodged on the NSW planning portal on 27 September 2021. 6. On 27 September 2021 the parties advised the Court that they had reached an agreement and provided to it a copy of that agreement along with draft conditions, a copy of the amended DA documentation and a Jurisdictional Statement. 7. The main changes between the original plans filed with the Class 1 Application and the final plans the subject of the s34 agreement are: 1. Design changes to the front fences and north (Gilpin Street) elevations. 2. The removal of rear balconies from the first floor (and south elevation) of the dwellings. 3. Changes to the garage roof form, materials, first floor layouts and windows, including raising the sill heights (to 1600mm) on the south (laneway) elevation of the garages. 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 parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.