Land and Environment Court New South Wales Medium Neutral Citation: Bardwell-Hill v Inner West Council [2023] NSWLEC 1116 Hearing dates: Conciliation Conference 3 March 2023 Date of orders: 15 March 2023 Decision date: 15 March 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted for development application number DA/2022/0042, as amended, for demolition of existing building, construction of a two-storey dwelling, carport and related landscaping on land identified as Lot 13 in Deposited Plan 1103920 and known as 2 Waite Avenue, Balmain NSW 2041 subject to the conditions included at Annexure "A". Catchwords: DEVELOPMENT APPEAL – residential development demolition and construction on new dwelling – conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Land and Environment Court Act 1979, s 34 Leichhardt Local Environmental Plan 2012, cll 1.2, 2.3, 4.3, 4.3A, 4.4, 5.10, 6.1, 6.2, 6.4 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021, s3, Sch 6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Inner West Local Environmental Plan 2022, cl 1.8A State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.65, Chapter 10 Texts Cited: Inner West Community Participation Plan Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: Nicole Bardwell-Hill (First Applicant) Richard Hill (Second Applicant Inner West Council (Respondent) Representation: Counsel: S Griffiths (Solicitor)(Applicants) C Morton (Solicitor)(Respondent) Solicitors: Bartier Perry (Applicants) Sparke Helmore (Respondent) File Number(s): 22/294541 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA/2022/0042 (DA) for demolition of the existing building, construction of a two-storey dwelling, carport and related landscaping (the Proposed Development) at 2 Waite Avenue, Balmain NSW 2041 legally described as Lot 13 in DP1103920 (the Site). 2. 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 3 March 2023. I presided over the conciliation conference. 3. At 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. 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. 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. 5. The parties provided the following relevant background: 1. On 16 January 2023, the parties' experts met on the Site on a 'without prejudice' basis (the Without Prejudice Meeting). 2. On 21 February 2023, in response to the Without Prejudice Meeting, the Applicants amended the DA with the consent of the Respondent (Amended DA) pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (2000 Regulation), which applies as the DA was lodged but not determined prior to 1 March 2022: s 3(1)(a) of Sch 6 Pt 1 of the Environmental Planning and Assessment Regulation 2021 (2021 Regulation). 3. On 22 February 2023, the Applicants filed documents comprising the Amended DA with the Court. The Applicants are not required to upload the amended materials to the NSW Planning Portal: s 3(2) of Sch 6 Pt 1 of the 2021 Regulation. 4. The documents comprising the Amended DA are: 1. Amended architectural plans (revision 01), prepared by Andrew Burges Architects and dated 16 February 2023; and 2. An amended BASIX Certificate number 1260934S (revision 02), prepared by Andrew Burges Architects and dated 15 February 2023 (Amended BASIX Certificate). 1. The parties agree that the Amended DA does not fundamentally alter the Proposed Development such that the Proposed Development cannot be considered an amendment to the DA, or would require a new DA, or would require amendment to the description of the Proposal and that the Proposal, as amended in the Amended DA, wholly addresses all contentions of the Respondent's Statement of Facts and Contentions filed 7 November 2022. 2. The Respondent had notified the DA in accordance with the Inner West Community Participation Plan between 8 February 2022 and 20 May 2022 (Notification). Six (6) submissions were received by the Respondent in objection to the Notification. The issues raised in the submissions are summarised as follows: 1. Insufficient side setbacks; 2. Design is contrary to the heritage conservation area; 3. Variation to the building location zone; 4. Insufficient stormwater information; 5. Visual privacy impacts to the properties at the rear of the Site; 6. Relocation of car parking space; 7. Structural impact on 4 Waite Avenue, Balmain; 8. Reduction in solar access to solar panels at 4 Waite Avenue, Balmain; 9. Noise impacts during construction; and 10. Impacts on trees on adjoining properties. 1. The Respondent, having considered the submissions received and the impacts of the Amended DA, is satisfied that the issues raised by the submissions have been sufficiently addressed by the Amended DA. The Respondent is also satisfied that the Amended DA does not require further notification under the Inner West Community Participation Plan as it constitutes a lesser impact on the locality. 2. On 12 December 2022, the registered proprietor of 11 Adolphus Street, Balmain, a neighbour objector to the DA, filed with the Court a Notice of Motion seeking to be joined as a party to the proceedings (Motion). The Motion sets out the objector's concerns with the DA in relation to: 1. Heritage conservation; and 2. Privacy. 1. On 22 February 2023, the Applicants provided the Amended DA to the Objector for their consideration. On 1 March 2023, the Objector confirmed in writing to the Court and the parties that the Amended DA satisfied her concerns and subsequently withdrew the Motion on 2 March 2023. 2. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 3. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings. 4. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Statement of Jurisdictional Reasons which I now summarise as relevant below and adopt as my reasons. 5. The First and Second Applicants are the registered proprietors of the Site. The DA was made with the written consent of the registered proprietors of the Site. 6. The Site is zoned R1 General Residential pursuant to the Leichhardt Local Environmental Plan 2013 (LLEP). 7. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the 2000 Regulation, the Proposal is a BASIX affected development, containing a BASIX affected building. The DA was accompanied by a BASIX certificate and the Applicants have provided the Amended BASIX Certificate as part of the Amended DA. 8. Pursuant to s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021, 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. The Site has historically been used for residential purposes with no known history of potentially contaminating uses and events as evidenced in the Statement of Environmental Effects filed with the Class 1 Application on 4 October 2022 at Tab 12, page 9. The Court is satisfied that the historical use of the Site for residential purposes results in a situation that: 1. No further investigation is warranted; and 2. The Site is deemed suitable to accommodate the Proposal. 1. Pursuant to s 6.65(1) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), the amendments to Chapters 6 – 12 which commenced on 21 November 2022 do not apply to the DA, as the DA was lodged and not determined by this date. Accordingly, the former Chapter 10 of the Biodiversity and Conservation SEPP still applies. 2. The Site is located within the Sydney Harbour Catchment in accordance with Chapter 10 of the Biodiversity and Conservation SEPP. The Site is not identified as: 1. land within the Foreshores and Waterways Area; 2. a strategic foreshore site, as a heritage item; or 3. land within the wetlands protection area, and therefore, only Part 10.3 of the Biodiversity and Conservation SEPP is applicable. The Respondent, in its consideration of the Amended DA, is satisfied with respect to Part 10.3 of the Biodiversity and Conservation SEPP and the Respondent considers the Amended DA satisfactory in this regard because no trees are proposed to be removed as evidenced in the Arboricultural Impact Assessment filed with the Class 1 Application at Tab 14, and supported by agreed conditions of consent 6, 20, 21, 30 and 31 at Annexure A. 1. The parties agree that the Amended DA is consistent with the aims of cl 1.2 of the LLEP. 2. The parties agree that the Amended DA is consistent with the zone R1 General Residential objectives pursuant to cl 2.3 and the Land Use Table of the LLEP. 3. The Proposed Development, characterised as demolition and a new dwelling house under the LLEP, is development permitted with consent in the R1 General Residential Zone pursuant to the Land Use Table of the LLEP. 4. Pursuant to cl 4.3(2) and the Height of Buildings Map of the LLEP, the Respondent has not adopted a maximum height of building development standard for the Site. 5. Pursuant to cl 4.3A(3) of the LLEP, development consent must not be granted to development to which the clause applies unless: 1. For lots equal to or less than 235sqm in area, a minimum of 15% of the total site area is provided as landscaped area (cl 4.3A(3)(a)(ii)) (Landscaped Area Development Standard); and 2. Site coverage does not exceed 60% of the site area (cl 4.3A(3)(b)) (Site Coverage Development Standard). 1. The Proposed Development complies with the Landscaped Area Development Standard and the Site Coverage Development Standard as: 1. The Amended DA, provides a landscaped area of 74.83sqm, equating to 35.8% of the total area of the Site (and an increase of the existing landscaped area); and 2. The Amended DA provides site coverage of 117.16sqm, equating to 56.3% of the total area of the Site. 1. Pursuant to cl 4.4(2B)(b)(ii) and the Floor Space Ratio Map of the LLEP, the maximum floor space ratio (FSR) applicable to the Site is 0.9:1 (FSR Development Standard). The Proposed Development complies with the FSR Development Standard as: 1. The Amended DA provides a gross floor area of 152.02sqm; and 2. The Amended DA has an FSR of 0.72:1. 1. The Site is located within the Balmain East Heritage Conservation Area pursuant to the LLEP, and the Gladstone Park Distinctive Neighbourhood pursuant to the Leichhardt Development Control Plan 2013 (DCP) pursuant to Part C2.2.2.3. Pursuant to schedule 5 and the Heritage Map of the LLEP, the Site is not an item of environmental heritage but is located within a heritage conservation area, specifically within Town of Waterview Conservation Area (identified as 'C4' in the LLEP). Existing development in the vicinity of the Site comprises: 1. On the western side of Waite Street, opposite the Site and between Vincent Street and Gladstone Street, garages which are generally single-storey with pitched roof forms front the street. 2. Two-storey buildings adjoining the rear boundary of the Site, fronting Adolphus Street, Balmain. 3. In the immediate locality, there is a variety of building forms, of varying scale and design including single-storey dwelling houses, semi-detached housing and two-storey terrace houses. 1. The consent authority is required by cl 5.10(4) of the LLEP to consider the 'effect of the proposed development on the heritage significance of the item or area concerned' before granting development consent. The parties agree that the Court can be satisfied that the heritage impacts of the Amended DA are considered acceptable, and the heritage contentions of the Respondent's SOFAC have been addressed. 2. Pursuant to cl 6.1 and the Acid Sulphate Soils Map of the LLEP, the Site is classified as Class 5 acid sulphate soils land and the Site is located within 500 metres of Class 1 land. The Proposed Development does not involve works below 5 metres Australian Height Datum or works that will lower the water table below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land, and as a result, does not require consent under cl 6.1 of the LLEP and an acid sulphate soils management plan is not required. 3. The Proposed Development includes minor excavation and fill that is defined as earthworks under the LLEP. Pursuant to cl 6.2(3) of the LLEP the consent authority must consider the earthworks matters identified under (a) to (h) of the clause prior to the grant of any development consent for earthworks. The parties have considered the matters of cl 6.2(3)(a)-(h) of the LLEP and agree that they are suitably addressed by the Amended DA. 4. Development consent must not be granted unless the consent authority is satisfied of the stormwater management matters identified under (a) to (c) of cl 6.4(3) of the LLEP. Having considered such matters, the Respondent, and the Court are satisfied that the Amended DA is acceptable subject to the agreed conditions of consent at Annexure A to this judgment. 5. On 16 March 2020, the Draft Inner West Local Environmental Plan 2020 (Draft LEP) was placed on public exhibition. Accordingly, the Draft LEP is a matter for consideration in the assessment of the DA under s 4.15(1)(a)(ii) of the EPA Act. On 12 August 2022, the Inner West Local Environmental Plan 2022 (LLEP 2022) was gazetted. Pursuant to cl 1.8A of the LLEP 2022, the Proposed Development is to be determined as if the LLEP 2022 had not commenced. In any event, the Respondent is satisfied that the Amended DA is acceptable with respect to the Draft LEP and that consent may be granted subject to conditions. 6. The parties have considered the Leichhardt Development Control Plan 2013 in relation to the Proposed Development and the parties are satisfied that the Amended DA is acceptable and consent can be granted subject to conditions. 7. 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. 8. 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. Notations: 1. The Court notes that: 1. The Respondent, as the relevant consent authority, has agreed to the Applicant amending the Application Class 1, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 so as to rely on the following amended materials: Document Description Prepared By Date (a) Drawing number DA-A00, Rev 01 – Cover Sheet Andrew Burges Architects 16 February 2023 (b) Drawing number DA-A01, Rev 01 – Site Plan (c) Drawing number DA-A02, Rev 01 – Site Demolition Plan (d) Drawing number DA-A03, Rev 01 – BASIX Summary (e) Drawing number DA-A04, Rev 01 – Compliance Diagrams (f) Drawing number DA-A05, Rev 01 – Compliance Diagrams (g) Drawing number DA-D01, Rev 01 – Ground Floor Plan (h) Drawing number DA-D02, Rev 01 – First Floor Plan (i) Drawing number DA-D03, Rev 01 – Roof Plan (j) Drawing number DA-E02, Rev 01 – Elevations South + West (k) Drawing number DA-E01, Rev 01 – Elevations North + East (m) Drawing number DA-F02, Rev 01 – Section C (n) Drawing number DA-M01, Rev 01 – Schedule of Materials and Finishes (o) Drawing number DA-P01, Rev 01 – 3D Perspectives Drawing number DA-T01, Rev 01 – Car Parking & Vehicle Crossing (p) BASIX Certificate number 1260934S_02 Andrew Burges Architects 15 February 2023 1. The Applicants filed the abovementioned amended materials, with the consent of the Respondent, with the Court on 22 February 2023 Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted for development application number DA/2022/0042, as amended, for demolition of existing building, construction of a two-storey dwelling, carport and related landscaping on land identified as Lot 13 in Deposited Plan 1103920 and known as 2 Waite Avenue, Balmain NSW 2041 subject to the conditions included at Annexure "A". E Espinosa Commissioner of the Court ********** 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: 16 March 2023