Land and Environment Court New South Wales Medium Neutral Citation: Studio Johnston Architects Pty Ltd v Inner West Council [2024] NSWLEC 1020 Hearing dates: Conciliation conference on 14 December 2023 Date of orders: 24 January 2024 Decision date: 24 January 2024 Jurisdiction: Class 1 Before: Harding AC Decision: The Court orders that: (1) The applicant is to file the amended development application documents, as outlined in Condition 1 of Annexure A, within 7 days of the date of this order. (2) The appeal is upheld. (3) Development Application DA/2023/0261 for the demolition of existing dwellings, swimming pool and structures, remediation of the site, site amalgamation, and construction of a new 4 storey dwelling with parking, swimming pool, landscaping and associated works at Lot 1 and Lot 2 in DP 797330 and Lot 1 in DP712231 (being Nos 4 and 6 St Mary's Street, Balmain East) is determined by the grant of development consent, subject to the conditions set out in Annexure A. Catchwords: DEVELOPMENT APPLICATION – new dwelling – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, ss 34, 34AA Inner West Local Environmental Plan 2022, cll 4.3, 4.3A, 5.10, 6.1, 6.2, 6.3 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Studio Johnston Architects Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: R White (Applicant) R Dunstan (Solicitor) (Respondent) Solicitors: Piper Alderman Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2023/209866 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Studio Johnston Architects Proprietary Limited (Applicant) against the deemed refusal, of Development Application No DA/2023/0261, which was lodged with Inner West Council (the Respondent) on 24 April 2023. 2. The development application seeks development consent for the demolition of existing dwellings, swimming pool and structures, remediation of the site, site amalgamation, and construction of a new four storey dwelling with parking, swimming pool, landscaping and associated works. The development is to take place at Nos 4 and 6 St Mary's Street, Balmain East, otherwise known as Lot 1 and Lot 2 in DP 797330 and Lot 1 in DP712231. 3. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 14 and 15 December 2023. 4. The parties undertook a site view as part of the Court process. At the site view, the parties heard oral submissions from neighbours regarding the proposed development. Whilst the written and oral submissions raised a number of issues, the key issues were character, height, built form, view loss and heritage. I note that the amendments made to the application as part of the proceedings reflect improved outcomes on these issues. 5. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to conditions. 6. Pursuant to s 34(3) of the LEC Act (which applies by virtue of s 34AA(2) of the LEC Act), I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 8. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following: 1. Pursuant to the Inner West Local Environmental Plan 2022 (IWLEP 2022), the subject site is zoned R1 General Residential wherein the use is permissible. In determining the development application, the objectives of the zone have been considered. 2. Clause 4.3 of the IWLEP 2022 requires the height of any building on the land to not exceed the maximum height shown on the Height of Building Map. The land is not identified on any Height of Building Map under the IWLEP 2022. 3. The land is affected by a development standard, requiring a landscaped area of 20% (24.1% provided) and a maximum site coverage requirement of 60% (only 49.88% covered), pursuant to cl 4.3A of the IWLEP 2022. The proposed development complies with the landscaped area and site coverage development standards. 4. Clause 5.10 of the IWLEP 2022 requires the consent authority to consider the effect of the proposed development on the relevant heritage conservation area and any nearby Heritage Items. The Land is located within the Balmain East Heritage Conservation Area. I am satisfied that the heritage experts have given due consideration to the heritage and conservation area requirements applying to the development including having assessed the Heritage Assessment report prepared by John Oultram Heritage and Design. The parties now agree that the amended proposal is compatible with the established character of the Balmain East Heritage Conservation Area. 5. Clause 6.1 of the IWLEP 2022 requires development consent for the carrying out of works on land which is shown on the Acid Sulfate Soils Map. The land is identified as 'Class 5' Acid Sulfate Soils and the site is within 500 m of a Class 1 Acid Sulfate Soil zone, however, the works are between 8 to 14 m AHD. The parties agree that due consideration has been given to the requirements of cl 6.1 and these requirements have been met and I agree. 6. Clause 6.2 of the IWLEP 2022 requires various matters to be taken into consideration in determining whether to grant consent for earthworks. The geotechnical report prepared by Crozier Geotechnical Consultants considers that the proposed excavation is acceptable and appropriate conditions of development consent have been imposed to ensure that an integrated structural and geotechnical report and structural plans regarding the proposal are prepared by an appropriately qualified Structural and Geotechnical Engineer. The parties agree that due consideration has been given to the requirements of cl 6.2 and these requirements have been met and I agree. 7. Clause 6.3 of the IWLEP 2022 requires a consent authority to be satisfied that various matters relating to stormwater management have been taken into consideration when determining whether to grant development consent for any application on residential land. A stormwater solution, prepared by ITM Design Pty Ltd, has been provided to address the matters in this clause. Appropriate conditions of development consent have been included in Annexure A to ensure that the stormwater civil design minimises the impacts of urban stormwater. I am therefore satisfied that the requirements of this clause have been met. 8. An amended BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 9. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Hazards). EBG Environmental Geoscience, on behalf of the applicant, undertook a Detailed Site Investigation and subsequently prepared a Remedial Action Plan. The parties agree that the requirements of the SEPP Hazards have been met as the required investigations have been undertaken and the site is capable of being used for residential purposes. It is for these reasons that I agree that the requirements of SEPP Hazards have been met. 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' agreement. 2. I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes: 1. That Inner West Council, as the relevant consent authority, pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application to amend the development application No DA/2023/0261 to rely on the amended plans and documents as outlined in Condition 1 to Annexure A attached to this judgment. Orders 1. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The applicant is to file the amended development application documents, as outlined in Condition 1 of Annexure A, within 7 days of the date of this order. 2. The appeal is upheld. 3. Development Application DA/2023/0261 for the demolition of existing dwellings, swimming pool and structures, remediation of the site, site amalgamation, and construction of a new 4 storey dwelling with parking, swimming pool, landscaping and associated works at Lot 1 and Lot 2 in DP 797330 and Lot 1 in DP712231 (being Nos 4 and 6 St Mary's Street, Balmain East) is determined by the grant of development consent, subject to the conditions set out in Annexure A. S Harding Acting 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: 24 January 2024