Land and Environment Court New South Wales Medium Neutral Citation: Moussa v Inner West Council [2023] NSWLEC 1605 Hearing dates: Conciliation Conference on 6 October 2023 Date of orders: 13 October 2023 Decision date: 13 October 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application DA-2022/0163, as amended, for the demolition of existing structures and Torrens title subdivision to create two allotments; and construction of two semi-detached dwellings with associated landscaping and site works, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPEAL – Torren title subdivision – semi-detached dwellings – 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 2021, s 38 Inner West Local Environmental Plan 2022, cl 1.8A Land and Environment Court Act 1979, s 34 Marrickville Local Environmental Plan 2011, cll 4.1, 4.3, 4.4, 5.10, 5.21, 6.1, 6.5 State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 Texts Cited: Australian Standard AS 2021:2015 Acoustics - Aircraft Noise Intrusion - Building Siting and Construction - Australian Government Inner West Community Engagement Strategy 2022-24 Category: Principal judgment Parties: Youssef Moussa (Applicant) Inner West Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) J Marsland (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Apex Planning and Environment Law (Respondent) File Number(s): 2023/140629 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 No. DA2022/0163 for Torrens title subdivision to create two allotments and construction of two semi-detached dwellings with associated landscaping and site works (the Proposed Development) at 9 Silver Street, Marrickville legally described as Lot 1 in DP970654 (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 6 October 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. The Respondent has considered the Amended Proposal and is now satisfied that the contentions raised in its Statement of Facts and Contentions (filed 29 May 2023) have been resolved. The Respondent is therefore satisfied that the Amended Proposal can be approved, subject to conditions of consent. 5. 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. 6. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 7. 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 to be the terms of cl 5.21 of the applicable Marrickville Local Environmental Plan 2011 (MLEP) regarding flood planning and a number of other provisions. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional note and orally during the conciliation conference which I set out below. 8. Pursuant to Sch 1, Div 2, s 7(1) of the EPA Act and Inner West Community Engagement Strategy 2022-24: 1. The Development Application was publicly notified for 14 days (excluding the Easter long weekend), from 5 April 2022 to 21 April 2022, and two submissions were received. The submissions raised issues relating to streetscape, solar access, flood impact and privacy. 2. The Review of Determination of the Development Application pursuant to s 8.2 of the EPA Act was notified for 14 days between 15 February 2023 and 1 March 2023 and one submission was received. The submission raised issues relating to streetscape, solar access and flood impact. 3. The Respondent is satisfied that the issues raised in the written submissions have been addressed by the Amended Proposal and by conditions of Consent. 4. The Respondent is also satisfied that the Amended Proposal does not require renotification given the lesser impacts caused by it on adjoining properties and the locality (as compared with the previously notified plans the subject of the Development Application and Section 8.2 Review). 1. The Development Application was made with the consent (in writing) of the registered proprietor of the Site. 2. The Development Application was lodged with the Respondent on 22 March 2022. The Applicant filed the Class 1 Development Appeal on 2 May 2023. 3. The Inner West Local Environmental Plan 2022 (IWLEP) was gazetted on 12 August 2022. Pursuant to cl 1.8A of IWLEP, a development application made and not determined before the commencement of the Plan must be determined as if the Plan had not commenced. and as such the DA is to be determined on the basis of IWLEP being a proposed (draft) environmental planning instrument, being a matter for consideration under s 4.15(1)(a)(ii) of the EPA Act and as such, the Development Application is to be determined in accordance with MLEP. 4. The Site is zoned R2 Low Density Residential pursuant to the Land Use Table and Land Zoning Map LZN_004 of the MLEP. The Proposed Development is permissible in the R2 Low Density Residential zone. 5. The Proposed Development is permissible in the R2 Low Density Residential zone. 6. Pursuant to cl 4.1 of MLEP, the Site is not subject to a minimum subdivision lot size. 7. The proposed development is compliant with the: 1. Height of buildings development standard at cl 4.3 of MLEP and Height of Buildings Map HOB_004. 2. Floor space ratio development standard at cl 4.4 of MLEP and Floor Space Ratio Map FSR_004. 1. The Site does not currently accommodate a heritage listed item. The Site is not located within a heritage conservation area and is not located within the vicinity of a heritage item, archaeological site or Aboriginal place of heritage significance. The Respondent is satisfied that the proposed development does not pose a detrimental impact to the cultural heritage of Marrickville, pursuant to cl 5.10 of the MLEP. 2. The Site adjoins a Sydney Water stormwater channel and is flood affected. The Court, as consent authority, is required to be satisfied, pursuant to cl 5.21(2) of the MLEP, that the Proposed Development: (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. 1. I am satisfied that the Amended Proposal and conditions of consent comply with cl 5.21(2) of the MLEP and this satisfaction is achieved for the following reasons: 1. Contention 6(a) of the SOFAC particularised the concern from Sydney Water to ensure that no building or permanent structure is to be located within 1 m from the outside wall of the channel or within Sydney Water land/easement, whichever is larger. The Proposed Development complies with the Sydney Water requirement of the 1 m and portions of the building are cantilevered to accommodate overland flow of water evidenced in architectural plans drawings DA-201 Rev E and DA-402 Rev E. 2. The Consent conditions address flood affectation as follows: 1. Condition 19: Flood Compatible Fence, 2. Condition 20: Flood Affected Site, 3. Condition 21: Overland Flow Path, 4. Condition 22: Flood Risk Management Plan. 1. The Proposed Development no longer proposes off street parking resolving the concern of flood levels and impacts on flood behaviour. 1. The terms of cl 6.1 of MLEP in relation to acid sulfate soils have been addressed by the Proposed Development as the Site is a Class 4 site and there will be no excavation below 2m, there is no requirement for an acid sulfate soils management plan. 2. In relation to aircraft noise, the Respondent is satisfied that cl 6.5 of MLEP has been satisfied by conditions of consent. The Court is satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015 as required by cl 6.5(3)(c) of the MLEP because the Applicant has filed an Acoustic Report dated 9 December 2021 with the Class 1 Application and consent condition 26 requires compliance with that Acoustic Report. 3. Pursuant to the State Environment Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), and the Environmental Planning and Assessment Regulation 2021, the Proposed Development comprises a BASIX affected development, containing a BASIX affected building. The Applicant has filed BASIX Certificate Number 1427512M dated 27 September 2023. 4. The consent authority is required to consider the contamination status of land prior to granting consent pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP). The Respondent is satisfied that the Site the Amended Proposal complies with Ch 4 of the RH SEPP. I refer to the Statement of Environmental Effects filed with the Class 1 Application, which concludes at pages 16 and 22 that "the history of the Site indicates residential purposes and is located within an established residential neighbourhood. It is not considered likely that the site has experienced any contamination". 5. 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. I adopt the reasons given by the parties and as set out in this judgment. 6. 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. Inner West Council, the respondent, as the relevant consent authority has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No. DA-2022/0163, including the following amended plans and materials: 1. Architectural Plans prepared by YM Design Studio Issue E dated 26 September 2023 Drawing Number Description DA-000 Cover DA-001 Site Location and Analysis DA-002 Subdivision Plan DA-003 Demolition Plan DA-101 Ground Floor Plan DA-102 Level 01 DA-103 Roof Plan DA-201 NW & SE Elevation DA-202 NE & SW Elevation DA-203 Streetscape Elevation DA-301 Section AA/BB DA-302 Section D Cross Section DA-401 GFA & POS Diagrams DA-402 Flood Study DA-901 Finishes Schedule 1. Landscape Plans prepared by Discount Landscape Designs dated 5 October 2023. Drawing Number Description Revision L/01 Proposed Landscape Design C L/02 Landscape Details N/A L/03 Landscape Specification N/A 1. BASIX Certificate Number 1427512M dated 27 September 2023. 1. The Applicant filed the amended development application with the court on Friday 6 October 2023. Orders: 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application DA-2022/0163, as amended, for the demolition of existing structures and Torrens title subdivision to create two allotments; and construction of two semi-detached dwellings with associated landscaping and site works, subject to the conditions of consent at Annexure A. E Espinosa Commissioner of the Court 140629.23 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: 13 October 2023