Land and Environment Court New South Wales Medium Neutral Citation: Trezetto Pty Ltd v Inner West Council [2022] NSWLEC 1454 Hearing dates: Conciliation conference on 19 August 2022 Date of orders: 31 August 2022 Decision date: 31 August 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court Orders: (1) The appeal is upheld. (2) Development Application number DA2022/0361 for alterations and additions to an existing building to provide two retail tenancies to the ground floor shop fronts and two residences located behind and above the retail tenancies across two floors including attic space and the realignment of the subdivision line between the two established lots, is determined by the grant of consent, subject to the conditions in 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 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, 2.7, 4.3A, 4.4A, 5.10, 6.1, 6.2, 6.4 State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6 Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: Trezetto Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Solicitors: A Spizzo, Alice Spizzo Advisory (Applicant) R McCulloch, Pikes and Verekers Lawyers (Respondent) File Number(s): 2022/188024 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, related to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent's refusal of development application DA 2022/0361 (DA). 2. The DA sought consent for alterations and additions to an existing heritage listed building to provide for two retail tenancies to the ground floor shop fronts and two residences located behind and above the shops, along with (residential) attic space. Realignment of the subdivision line between the established two lots is also proposed. The proposal also involves demolition of part of the existing building. The site is 69 – 71 Darling Street, East Balmain. 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 19 August 2022. I presided over the conciliation conference. 2. Prior to the conciliation conference, the parties had come to 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 and granting consent to the DA subject to conditions. 3. 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 assisted here with a jurisdictional statement provided to the Court on 19 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 and low intensity local retail and commercial use believes that the likelihood of contamination must be considered low. The parties advise that the Court can be satisfied that the provisions of cl 4.6 have been met. I accept this advice of the parties. Leichhardt Local Environmental Plan 2013 (LLEP) 1. I note that Inner West Local Environmental Plan 2022 (IWLEP) recently came into effect and applies to the site. However, the savings and transitional provisions at cl 1.8A indicate: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 1. Consequently, LLEP continues to apply. 2. I accept the advice of the parties that the proposal is for alterations and additions for the purpose of a mixed-use retail and residential development which is a permissible use in the applicable B1 Neighbourhood Centre Zone. I have had regard to the zone objectives as required under cl 2.3(2). I also note that demolition is permissible with consent under cl 2.7. 3. In regard to development standards, I note that LLEP does not include a height of buildings standard for the site. I also accept the advice of the parties that the proposal complies with the landscaped area and site coverage standards as applicable under cl 4.3A and the floor space ratio controls under cl 4.4A. 4. As the site falls within a heritage conservation area, under cl 5.10(4), there is a need for me to consider the effect of the proposed development on the heritage significance of the area concerned. I have done so mindful of the heritage report included in the Class 1 Application filed on 28 June 2022 (Tab 8). 5. The site is classified as Class 5 acid sulfate soils land. I accept the advice of the parties that a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works. There will be no notable earthworks below natural ground levels. 6. The DA includes minimal earthworks. Nevertheless, I have considered the matters listed at subcl 6.2(3)(a)-(h). 7. In regard to 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. With this advice, I too am satisfied in regard to each of the listed matters. Other provisions of s 4.15(1) of the EPA Act 1. In regard to s 4.15(1)(a)(ii) of the EPA Act, I have considered IWLEP and find that nothing of substance turns on this instrument. 2. The Class 1 application works through Leichhardt Development Control Plan 2013 (Tab 7 Section 5.8), jurisdictionally nothing turns on this policy instrument. 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 an objecting submission was received in regard to the proposal. I note the parties, both orally and in writing, have provided me with an outline of the objection and an explanation of how the matters raised have been addressed. I have had regard to this objecting submission in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act. 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 details, 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 were originally in dispute between the parties. 3. The LEC 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 DA2022/0361 for alterations and additions to an existing building to provide two retail tenancies to the ground floor shop fronts and two residences located behind and above the retail tenancies across two floors including attic space and the realignment of the subdivision line between the two established lots, is determined by the grant of consent, subject to the conditions in Annexure A. ………………………. Peter Walsh Commissioner of the Court Annexure A (255271, 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: 31 August 2022