Land and Environment Court New South Wales Medium Neutral Citation: Boddam-Whetham v Inner West Council [2022] NSWLEC 1458 Hearing dates: Conciliation conference on 22 and 23 August 2022 Date of orders: 02 September 2022 Decision date: 02 September 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: 1) The appeal is upheld. 2) Development Application number DA/2021/0326, as amended, for alterations and additions to the existing dwelling, landscaping and parking on land identified as Lots 28 and 29 in Deposited Plan 1053557 and known as 36 Hopetoun Street, Camperdown NSW 2050, 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 Marrickville Local Environmental Plan 2011 cll 2.3, 5.10, 6.1, 6.2 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: Marrickville Development Control Plan 2011 Category: Principal judgment Parties: Andrew Dennis Boddam-Whetham (First Applicant) Amelia Elizabeth Goldsmith (Second Applicant) Inner West Council (Respondent) Representation: Solicitors: S Griffiths, Bartier Perry Lawyers (Applicants) S Turner, Inner West Council (Respondent) File Number(s): 2022/119957 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 refusal of development application DA/2021/0326 (DA). The DA sought consent for alterations and additions to the existing dwelling with associated landscaping and parking at 36 Hopetoun Street, Camperdown, legally described as Lots 28 and 29 in Deposited Plan 1053557 (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 22 and 23 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. In relation to the amendments to the DA, of note here is the advice of the parties, 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 amendment of the DA by the applicant. The amended material involves the following material: Document Description Prepared By Date Sheet 34_LEC_100, Revision B – Cover Sheet Sheet 34_LEC_101, Revision B – Context & Laneway Street Scape Sheet 34_LEC_102, Revision B – Site Plan / Site Analysis Sheet 34_LEC_107, Revision B – Proposed Ground Floor Plan Sheet 34_LEC_108, Revision B – Proposed Lower Ground Floor Sheet 34_LEC_109, Revision B – Proposed First Floor Plan Atelier M 23 August 2022 Sheet 34_LEC_110, Revision B – Proposed Ground Floor Sheet 34_LEC_111, Revision C – West Elevation & Schedule of Finishes Sheet 34_LEC_112, Revision B – East Elevation Sheet 34_LEC_113, Revision B – South Elevation Sheet 34_LEC_114, Revision B – Sections Sheet 34_LEC_115, Revision B – FSR & Landscape Calculations BASIX Certificate Number A404566_02 Atelier M 23 August 2022 1. 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. 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 23 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, 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 the site is considered to be suitable for the proposal as amended. 2. On this basis, I am satisfied that the requirements of cl 4.6 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 EPA Regulation, the proposal is a BASIX affected development, containing a BASIX affected building. The original DA was accompanied by a BASIX certificate and the applicant has provided an amended BASIX Certificate, which forms part of the application before the Court satisfying requirements. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 1. The parties advise that pursuant to cl 3 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (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 SREP. The site is also not located in the vicinity of a heritage item listed under the SREP. I accept the advice of the parties that the proposal is satisfactory with respect to the SREP. Marrickville Local Environmental Plan 2011 (MLEP) 1. The proposal is for alterations and additions to a dwelling house, permissible development in the subject R1 General Residential zone. 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 all relevant development standards. 3. The site is not an item of environmental heritage but is located within a heritage conservation area. The consent authority is required by cl 5.10(4) of MLEP to consider the "effect of the proposed development on the heritage significance of the item or area concerned" before granting development consent. Heritage experts were appointed by each party and the experts agreed that the proposal, as amended, was satisfactory on heritage grounds. The requirements of cl 5.10(4) have been addressed. 4. The site is classified as Class 5 acid sulfate 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 sulfate soils management plan is not required. 5. The DA includes minor works that are defined as earthworks under MLEP. This means I need to consider the matters listed at subcll 6.2(3)(a)-(h). The parties advise me that the respondent has considered those matters in its assessment of the DA. In particular it is noted that the Applicant has filed a geotechnical report and a construction methodology report, relevant to matters raised at cll 6.2(3)(a)-(g). In regard to earthworks, the parties agree that the proposal is acceptable subject to the imposition of certain conditions requiring further reports and protection of adjoining properties. The requirement to consider the matters at cll 6.2(3)(a)-(g) has been addressed. 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 Marrickville Development Control Plan 2011. 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 a number of objecting submissions were received in regard to the proposal. I note I also heard from three objectors during a site inspection on 22 August 2022, and had the opportunity to undertake a view from certain neighbouring properties. The parties have provided me with an outline of the objections and through the course of the conciliation explained how matters raised were addressed in a manner seen by the parties to be reasonable in the circumstances. 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 under the Inner West Community Participation Plan. 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/2021/0326, as amended, for alterations and additions to the existing dwelling, landscaping and parking on land identified as Lots 28 and 29 in Deposited Plan 1053557 and known as 36 Hopetoun Street, Camperdown NSW 2050, is determined by the grant of consent subject to the conditions at Annexure "A". ………………………. Peter Walsh Commissioner of the Court ********** 119957.22 (Annexure A) 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: 02 September 2022