Land and Environment Court New South Wales Medium Neutral Citation: Thomas v Inner West Council [2023] NSWLEC 1266 Hearing dates: Conciliation conference on 8 May 2023 Date of orders: 01 June 2023 Decision date: 01 June 2023 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal be upheld. (2) Development Consent be granted to Development Application No. DA/2022/0405 for alterations and additions to the existing dwelling, demolition of the existing carport and garage, including new front garage at Lot 23 Section 7 in Deposited Plan 7508 also known as 48 Tillock Street, Haberfield, subject to the conditions at Annexure A. Catchwords: DEVELOPMENT APPLICATION — alterations and additions to existing dwelling house in R2 Low Density Residential zone – conciliation conference – agreement between parties – orders Legislation Cited: Ashfield Local Environmental Plan 2013, Sch 5, cll 5.10, 6.1, 6.3, 6.5 Environmental Planning and Assessment Act 1979, ss 4.18, 8.7 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 7 Category: Principal judgment Parties: Alexandra Thomas (First Applicant) Trent Thomas (Second Applicant) Inner West Council (Respondent) Representation: Counsel: G Shapiro (Solicitor) (Applicant) C Morton (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Sparke Helmore (Respondent) File Number(s): 2022/346491 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Inner West Council (the Respondent) of development application DA/2022/0405 seeking consent for alterations and additions to an existing dwelling house at 48 Tillock Street, Haberfield. 2. The appeal was filed on 17 November 2022, and the development application was later refused by the Inner West Local Planning Panel on behalf of the Respondent on 6 December 2022. 3. The appeal was listed for mandatory conciliation on 8 May 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). 4. Prior to the conciliation conference, at which I presided, the Applicant filed a Notice of Motion amending the development application by virtue of amended architectural, stormwater and landscape plans and other documents that, in the view of the Respondent at the commencement of proceedings, addressed the matters in contention. 5. On the basis of the amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with s 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 8 May 2023. 7. The parties asked 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 s34 agreement. 8. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [20]. 9. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met for the reasons that follow. 10. The development application was lodged on 26 May 2022, and was notified between 14 June and 28 June 2022 in accordance with s 4.18 of the EPA Act and the Respondent's notification policy. 11. The site is located within the R2 Low Density Residential zone, according to the Ashfield Local Environmental Plan 2013 (ALEP) that applies in the circumstances of this case. Development such as that sought is permitted with consent, where consistent with the objectives for development in the R2 zone, that are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The site is also located in the Haberfield Heritage Conservation Area (Haberfield HCA), identified as an area of state significance in Schedule 5 of the ALEP. I accept the conclusion reached in the Statement of Heritage Impact, prepared by Archnex and dated May 2022 that the proposal does not give rise to adverse visual impact on the streetscape or the Haberfield HCA more generally, and so the effect of the proposed development is acceptable when cl 5.10(4) of the ALEP is considered. 2. On the basis of the Geotechnical Investigation Report prepared by GCA dated 28 April 2022, and subsequent assessment by the same author dated 2 May 2023, the amended Stormwater Plans prepared by Engineering Studio, and the extent of permeable surfaces on the land documented on the amended landscape plans prepared by Bayside Built, I am satisfied in respect of those matters at cl 6.1 of the ALEP regarding earthworks and, to the extent that it is relevant, that stormwater management has been satisfactorily addressed within the terms of cl 6.3(3) of the Inner West Local Environmental Plan 2022. 3. I have also considered whether the development will maintain the single storey appearance of dwellings in the Haberfield HCA. I am satisfied that the proposal is for development of gross floor area at the ground floor only, does not involve excavation in excess of 3m, does not propose installation of dormer or other windows in the roof form, and results in at least 50% of the site being landscaped area. As such, the proposed development achieves the requirements of cl 6.5 of the ALEP. 4. I accept the agreed position of the parties, supported by the chronology of site ownership set out in the Statement of Heritage Impact cited at [12], that the site has historically been used for residential purposes and I am satisfied that the site is not contaminated, pursuant to cl 7 of the State Environmental Planning Policy (Resilience and Hazards) 2021. 5. The proposed development seeks consent for the removal of three trees on the subject site, supported by an Arboricultural Impact Assessment prepared by Ms Margot Blues dated 13 May 2022 that assesses the retention value of the tree as 'low' or 'very low'. The removal of the trees does not exceed the biodiversity offset scheme threshold and is part of the development the subject of the development application for which consent is sought, pursuant to s 2.6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021. 6. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Cert No. A456861_03 dated 26 April 2023), prepared by Certified Energy in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation. 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. Orders 1. The Court orders that: 1. The appeal be upheld. 2. Development Consent be granted to Development Application No. DA/2022/0405 for alterations and additions to the existing dwelling, demolition of the existing carport and garage, including new front garage at Lot 23 Section 7 in Deposited Plan 7508 also known as 48 Tillock Street, Haberfield, subject to the conditions at Annexure A. T Horton Commissioner of the Court 346491.22 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: 01 June 2023