Land and Environment Court New South Wales Medium Neutral Citation: Day v Inner West Council [2022] NSWLEC 1441 Hearing dates: Conciliation conference on 11 and 12 August 2022 Date of orders: 24 August 2022 Decision date: 24 August 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: 1) The appeal is upheld. 2) Development Application number DA/2021/0952, as amended, for alterations and additions to the existing dwelling and studio on land identified as Lot 14, Section 26 in Deposited Plan 854 and known as 176 Annandale Street, Annandale, is determined by the grant of consent subject to the conditions at Annexure "A". Catchwords: DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Inner West Local Environmental Plan 2022, cl 1.8A Land and Environment Court Act 1979, s 34 Leichhardt Local Environmental Plan 2013, cll 2.3, 4.3A, 4.4, 5.10, 6.1, 6.2, 6.4 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cl 3 Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: Jonathan Eric Day (Applicant) Inner West Council (Respondent) Representation: Solicitors: S Griffiths, Bartier Perry Lawyers (Applicant) J Marsland, Apex Planning and Environment Law (Respondent) File Number(s): 2022/123735 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, relate to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent's deemed refusal of development application DA/2021/0952 (DA). The DA sought consent for alterations and additions to the existing dwelling house and studio at 176 Annandale Street, Annandale, legally described as Lot 14, Section 26 in Deposited Plan 854 (site). Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 11 and 12 August 2022. I presided over the conciliation conference. 2. After the conciliation conference, the parties filed an 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, subject to amended plans, and granting consent to the development application subject to conditions. 3. The amended DA includes: 1. Amended architectural plans, issue H prepared by OIKOS Architects and dated 11 August 2022, and featuring an amended design of the proposal (including the deletion of the attic level and swimming pool) aimed at addressing the respondent's contentions. 2. Amended hourly shadow diagrams, issue G prepared by OIKOS Architects and dated 12 July 2022. 3. Amended materials and finishes schedule, issue G prepared by OIKOS Architects and dated 4 July 2022. 4. Amended BASIX Certificate number A430558_02 prepared by OIKOS Architects and dated 22 July 2022. 1. In relation to the amendments to the DA, of note here is the advice of the parties provided within the body of the filed agreement, that the respondent, as the relevant consent authority, has agreed under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), to this further amendment of the DA by the applicant. I have also been advised that the amendment has been lodged on the NSW Planning Portal. In turn, the DA has been amended in accordance with each of the requirements of cl 55(1) of the EPA Regulation, and it is this amended DA which is now before the Court. The applicant has also filed the agreed amended material with the Court. 2. 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. Jurisdiction 1. The parties' decision involves the Court exercising the consent authority 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 certain jurisdictional prerequisites of relevance in these proceedings and how they have been or could be satisfied in a statement of jurisdictional reasons, provided to the Court on 15 August 2022. In regard to jurisdiction and having regard to this statement, I find as follows: State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) 1. Pursuant to cl 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I am advised by the parties that the respondent has considered whether the site is contaminated and, on account of the site being historically used for residential purposes with no known history of potentially contaminating uses and events, is satisfied that: * No further investigation of the site is warranted; and * Subject to conditions, the site is considered to be suitable for the proposal, as amended by the Amended DA. 1. On this basis, I am satisfied that the requirements of SEPP Resilience and Hazards are met. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) 1. Pursuant to SEPP BASIX, and the Environmental Planning and EPA Regulation, the proposal is a BASIX affected development, containing a BASIX affected building. The DA was accompanied by a BASIX certificate and the applicant has provided an amended BASIX Certificate. The parties advise that the respondent has reviewed the Amended BASIX Certificate and deems it satisfactory. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Harbour SREP) 1. Pursuant to cl 3 of the Harbour SREP and the Sydney Harbour Catchment Map, the site is located within the Sydney Harbour Catchment. 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 Harbour SREP. The site is also not located in the vicinity of a heritage item listed under the Harbour SREP. The respondent has considered the proposal and deemed it be satisfactory with respect to the SREP. I too am satisfied that the proposal is satisfactory under SREP considerations. Leichhardt Local Environmental Plan 2013 (LLEP) 1. The proposal is for alterations and additions to a dwelling house, permissible development in the subject R1 General Residential zone under LLEP. I have had regard to the zone objectives as required under cl 2.3(2). 2. In regard to development standards, I accept the advice of the parties that the proposal, as documented in the applicable plans, complies with LLEP's: * floor space ratio (FSR) standard - cl 4.4 provides for a maximum FSR of 0.7:1 for the site; whereas the proposal has a GFA of 215.9m2 and thus accommodates this requirement given the site area of 313.5m2; * landscaped area standard –cl 4.3A(3)(a)(ii) requires at least 20% of the site as landscaped area; whereas the proposal provides for 66.5m2 of landscaped area or some 21.2% of the site area; and * site coverage standard —cl 4.3A(3)(b) requires site coverage not to exceed 60% of the site area; whereas the proposal has a site coverage of 176.4m2 or 56.3% of the site area. 1. The site falls within Annandale Heritage Conservation Area. Under cl 5.10(4), there is a need for the consent authority to consider the effect of the proposed development on the heritage significance of the area concerned. The heritage expert's deliberations resulted in proposal amendments which were seen by these experts to provide for an acceptable resolution of concerns relating to the effect of the proposal on Annandale Heritage Conservation Area (reference: Joint Report by P North and R Stevens filed 27 July 2022 par 5.7.1.1). I have addressed the jurisdictional requirement to consider the effect of the proposed development on the heritage significance of the Annandale Heritage Conservation Area. 2. The site is classified as Class 5 acid sulphate soils land and is located within 500m of Class 2 land. I accept the advice of the parties that because the proposal would not involve works below 5m Australian Height Datum and would not lower the water table below 1m Australian Height Datum on adjacent Class 1, 2, 3 or 4 land, the proposal does not require consent under cl 6.1, and an acid sulphate soils management plan is not required. 3. The DA includes minor works that are defined as earthworks under LLEP. This means I need to consider the matters listed at subcl 6.2(3)(a)-(h). The parties advise me that the respondent has considered those matters in its assessment of the DA and that appropriate conditions of consent have been included. I too have considered the relevant matters. 4. In regard to cl 6.4 and stormwater management, development consent must not be granted unless the consent authority is satisfied in relation to the matters listed at subcl 6.4(3)(a)-(c). Again, I am advised that the respondent has considered these matters and is itself satisfied. Having regard to subcl 6.4(3)(a), I am relevantly satisfied given the proposal's compliance with landscaped area and site coverage controls. Having regard to subcll 6.4(3)(b) and (c), I am relevantly satisfied given the inclusion of proposed Consent Condition 14, which addresses such matters. Other provisions of s 4.15(1) of the EPA Act 1. I am aware that Inner West Local Environmental Plan 2022 (IWLEP) has recently commenced. However, savings provisions at cl 1.8A of IWLEP provide that development applications, such as this DA, made but not finally determined before the commencement of IWLEP, must be determined as if IWLEP had not commenced. I have taken account of IWLEP having regard to s 4.15(1)(a)(ii) of the EPA Act, but find that nothing of substance turns on this. 2. The parties have provided me with advice in regard to the provisions of Leichhardt Development Control Plan 2013. I have considered this advice and the requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met. 3. The parties advise the proposal was notified in accordance with requirements and objecting submissions were received in regard to the proposal. I note I also heard from one objector during a site inspection on 11 August 2022, and had the opportunity to undertake a view from this neighbouring property to the south. The parties have provided me with an outline of the objections and explanation of how they have each been addressed. I note that an objection was raised in regard to a breach of development standards which would have brought requirements for additional jurisdictional considerations. However, the recent amendments to the application, and removal of the previously proposed swimming pool, mean there is no longer any breach of development standards. I have taken into consideration these objecting submissions in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act. I further note and accept the advice of the parties that there was no requirement to notify the most recent amendments given that they can be expected to result in reduced or similar impact to that previously notified. 4. I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act. Conclusion 1. Based on the above considerations, 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. It follows that I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. 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 had been in dispute between the parties. 3. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. 4. The Court orders: 1. The appeal is upheld. 2. Development Application number DA/2021/0952, as amended, for alterations and additions to the existing dwelling and studio on land identified as Lot 14, Section 26 in Deposited Plan 854 and known as 176 Annandale Street, Annandale is determined by the grant of consent subject to the conditions at Annexure "A". ………………………. Peter Walsh Commissioner of the Court Annexure A (230040, 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: 25 August 2022