Land and Environment Court New South Wales Medium Neutral Citation: Rocchi v Inner West Council [2022] NSWLEC 1545 Hearing dates: Conciliation conference on 9 June and 30 June 2022 Date of orders: 05 October 2022 Decision date: 05 October 2022 Jurisdiction: Class 1 Before: Sheridan AC Decision: The Court Orders that: (1) The appeal is upheld. (2) Development application DA/2021/1220 for alterations and additions to the existing semi-detached dwelling house at 22 England Avenue, Marrickville is determined by the grant of consent subject to the conditions at annexure "A". (3) The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. Catchwords: DEVELOPMENT APPEAL – dwelling house – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979 s 34 Marrickville Local Environmental Plan 2011 cll 2.3, 2.7, 4.3, 4.4, 6.1 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 Category: Principal judgment Parties: Romana Rocchi (Applicant) Inner West Council (Respondent) Representation: Counsel: A Knox (Applicant) R Wilcher (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2022/103772 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA No 2021/1220 (the DA) by Inner West Council (the Council). In exercising the functions of the 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 273.7 m2 parcel of land which is legally described as Lot 1 in DP 216689 and known as 22 England Avenue, Marrickville (the Site). The Site is located on the north-east corner of England Avenue and North Street, Marrickville. The Site contains a semi-detached dwelling house that adjoins to the south a dwelling at 20 England Avenue, Marrickville. The DA as submitted to Council sought consent for alterations and additions to the existing dwelling house, including demolition of the rear of the dwelling and the construction of a two-storey addition to the dwelling house with swimming pool and formalisation of an existing car space. 3. The Development Application was notified by the Respondent for a period of 14 days from 13 January 2022 to 27 January 2022 and no submissions were received. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 June and 30 June 2022, and at which I presided. During conciliation, amended plans (the Amended Development Application) were prepared by the Applicant to address Council's contentions. 5. The main changes between the plans as originally submitted to Council and the Amended Development Application, the subject of the s 34 agreement, are: 1. The ground floor laundry has been deleted which has increased the ground floor front setback of the addition by 3 metres. 2. The deletion of the ground floor laundry resulting in an additional 3 metres of the secondary street facing façade of the existing dwelling will be retained including an existing window. 3. The front setback of the first floor addition has been increased by 1 metre. 4. The first floor side setback has been increased at the front portion of the addition to expose/retain more of the existing roof form. 5. A small portion of the first floor addition has been cut out along the southern boundary to reduce the bulk of the addition as viewed from the neighbour's yard. The planted roof area will be increased to fill this area. 6. The boundary facing wall of the cut out will be planted out. 7. An interpretation of an existing window will be added into the brickwork of the boundary wall facing the secondary street. 8. The existing car space forward of the building line will be deleted and replaced with a tree. 9. The first floor layout has been revised slightly to accommodate the above changes to the building envelope. 10. A Juliet balcony has been added to the rear facing yard to maximise the outlook onto the planted roof. 1. During the conciliation conference, the parties reached 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 development consent to the development application subject to conditions. 2. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 June 2022. 3. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 4. 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 power under s 4.16 of the EPA Act. 5. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [11] – [14] below. Satisfaction of jurisdiction 1. The relevant jurisdictional matters in relation to the Marrickville Local Environmental Plan 2011 (MLEP) are: 1. The proposed development is characterised as a semi-detached dwelling house which is permitted in the R2 Low Density Residential zone under MLEP with the development consent of Council. 2. Clause 2.3(2) requires that regard be had to the R2 zone objectives. I am satisfied that Amended Development Application is by its form and nature consistent with the objectives of the zone. 3. Clause 2.7 of MLEP (Demolition) provides that demolition is permissible with consent. To the extent the demolition is proposed, the impacts of that demolition have been considered and are dealt with in the agreed conditions of consent. 4. Clause 4.3(2) (Building Height) prescribes a maximum building height development standard of 9.5m metres for any building on the land. The design of the Proposed Development as amended complies with the height control. 5. Clause 4.4(2) (Floor Space Ratio) of MLEP prescribes a maximum floor space ratio (FSR) development standard of 0.8:1. The proposed development complies with the FSR control in MLEP. 6. Under Marrickville Development Control Plan (DCP) the site is located within the Newington Precinct. Part 4.11 of the DCP provides objectives and controls for Residential Period Dwellings and Part 4.1.15 – Design Guidelines provides design controls for semi-detached houses. The Amended Development Application addresses the requirements of Part 4.11 and Part 4.1.15 and I am satisfied that the design of the built form is in character with the scale and form of dwellings within the visual catchment of the site in the Newington Precinct. 7. The Applicant is the owner of the land and has provided owners consent to lodgement of the DA. 1. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) requires the consent authority to consider whether land is contaminated, and if contaminated, it is satisfied that the land is suitable for the purpose proposed. I am satisfied from the evidence that the Site is currently used for residential purposes and is not contaminated and does not adjoin land known to be contaminated. 2. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), an amended BASIX certificate dated 30 June 2022 has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the SEPP BASIX. 3. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the Site. I am satisfied that as no vegetation is being cleared the SEPP B&C is not relevant. Conclusion 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, 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, and have not, made any merit assessment of the issues that were originally in dispute between the parties. Notes 1. The Court notes that: 1. Inner West Council as the relevant consent authority has agreed under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application in accordance with the below documentation: Document: Prepared by: Dated: DA01 – Site Analysis Plan Apto & Best 17/6/22 (B) DA10 - Existing & Demolition Ground Floor Plan Apto & Best 17/6/22 (B) DA11 – Roof Plan Apto & Best 17/6/22 (B) DA12 – Ground Floor + Landscape Plan Apto & Best 17/6/22 (B) DA13 – First Floor Plan Apto & Best 17/6/22 (B) DA21 – East Elevation Apto & Best 17/6/22 (B) DA22 – South Elevation Apto & Best 17/6/22 (B) DA23 – West Elevation Apto & Best 17/6/22 (B) DA24 – North Elevation Apto & Best 17/6/22 (B) DA31 – Section A Apto & Best 17/6/22 (B) DA32 – Section B Apto & Best 17/6/22 (B) DA61 – Samples Board Apto & Best 17/6/22 (B) DA81 – Area Calculations Apto & Best 17/6/22 (B) 18.22.1A – Landscape Plan Nicholas Hosking Studio May 2022 BASIX Certificate Apto Best 30/6/22 1. The Applicant lodged the amended application on the NSW Planning Portal on 30 June 2022. 2. The Applicant filed the amended application with the Court on 30 June 2022. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development application DA/2021/1220 for alterations and additions to the existing semi-detached dwelling house at 22 England Avenue, Marrickville is determined by the grant of consent subject to the conditions at annexure "A". 3. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. L Sheridan Acting Commissioner of the Court Annexure A (238315, pdf) ******** Amendments 01 November 2022 - Pursuant to UCPR r 36.17, the Court amends condition 2(a) of Annexure A referred to in Order 2 of the judgment to correct a typographical error 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: 01 November 2022