Land and Environment Court New South Wales Medium Neutral Citation: 5ifth Grade Pty Ltd v Inner West Council [2022] NSWLEC 1081 Hearing dates: 6, 21 December 2021 and 31 January 2022, final agreement filed 9 February 2022 Date of orders: 17 February 2022 Decision date: 17 February 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA/2020/0165 and rely on the amended plans and documents listed at condition 1 of Annexure A. (2) The appeal is upheld. (3) Consent is granted to Development Application DA2020/0165 for alterations and additions to the existing heritage building, including restoration works and the provision of an additional residential dwelling, at 139 Catherine Street, Leichhardt, subject to conditions contained in Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions – heritage item – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Leichhardt Local Environmental Plan 2013, cll 4.4, 5.10, 6.1 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (December 2021) Category: Principal judgment Parties: 5ifth Grade Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: M Sonter and C Marginson (Solicitors) (Applicant) R Wilcher (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Inner West Council (Respondent) File Number(s): 2021/254703 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 DA2020/0165 (the DA) by Inner West Council (the Respondent). The DA sought consent for alterations and additions to the existing heritage building - including demolition of the existing two storey rear wing, excavation of the front portion of the building to create motorcycle parking at lower ground level, construction of a three level rear extension incorporating two apartments, reconstruction of the original shopfront and provision of landscaping - at 139 Catherine Street, Leichhardt (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6, 21 December 2021 and 31 January 2022. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published on 1 December 2021, the matter commenced with a site view limited in the number of participants, and thereafter was conducted by Microsoft Teams. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 5. Whilst the amended DA remains similar to the original DA, a series of changes cumulatively work to resolve the contentions initially raised by the Respondent, which in turn relate primarily to impacts upon the heritage item, the heritage conservation area and heritage items in the vicinity of the site. 6. Of particular note, the amended DA has been configured to retain significant original fabric contained within the rear wing of the existing heritage item and has been redesigned to comprise a single residential dwelling where previously two were proposed. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter. 10. The parties agree, and I am satisfied, the Leichhardt Local Environmental Plan 2013 (LLEP) is a relevant environmental planning instrument. The site is zoned B1 Neighbourhood Centre and the proposed development - comprising a shop and a residential dwelling - is permissible with consent. 11. The parties agree, and I am satisfied, that all principal development standards of the LLEP have been met by the proposal, and specifically that the amended DA conforms with the development standard set out at cl 4.4 - Floor space ratio - of the LLEP. 12. The parties agree, and I am satisfied, that those matters set out in cl 5.10 - Heritage conservation - of the LLEP, have been adequately addressed. It is noted in particular that: 1. The site comprises an existing three-storey shopfront and dwelling, which is one of seven buildings located within a group of terraces known as the 'Thorby Buildings' constructed in 1912, which is recognised within the LLEP as local heritage item I634. 2. The Applicant has provided a Heritage Impact Statement, prepared by Urbis and dated 13 October 2021, with the amended DA which assesses the impacts of the proposal on the site's heritage significance. 3. The amended DA proposes to conserve the heritage significance of the site, in part through restoration of the Catherine Street elevation including the shopfront and by the retention of original fabric contained within the rear wing of the building. 1. The parties agree, and I am satisfied, that those matters set out in cl 6.1 - Acid sulfate soils - of the LLEP, have been adequately addressed. It is noted that the site is identified within an area of Class 5 Acid Sulfate Soils. Consistent with subcll 6.1(2) and (6) of the LLEP, the proposed alterations and additions are not proposed on land below 5m AHD and it is unlikely the water table will be lowered. 2. The parties agree, and I am satisfied, that State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) is an additional relevant environmental planning instrument. The historical land uses associated with the site are residential and it is therefore unlikely to be contaminated, and as such, I am satisfied cl 7(1) of SEPP 55 has been appropriately addressed. 3. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX). A BASIX certificate, prepared by Efficient Living Pty Ltd and dated 1 February 2022, has been submitted with the DA (as amended). 4. 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. 5. The Court notes that: 1. Pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the consent of the Respondent. 2. The amended DA was uploaded to the NSW Planning Portal on 9 February 2022. 3. The amended DA was filed with the Court on 9 February 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA/2020/0165 and rely on the amended plans and documents listed at condition 1 of Annexure A. 2. The appeal is upheld. 3. Consent is granted to Development Application DA2020/0165 for alterations and additions to the existing heritage building, including restoration works and the provision of an additional residential dwelling, at 139 Catherine Street, Leichhardt, subject to conditions contained in Annexure A. ……………………….. M Pullinger Acting Commissioner of the Court Annexure A (229224, 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: 17 February 2022