Land and Environment Court New South Wales Medium Neutral Citation: Elias v Inner West Council [2024] NSWLEC 1135 Hearing dates: Conciliation Conference 7 March 2024 Date of orders: 21 March 2024 Decision date: 21 March 2024 Jurisdiction: Class 1 Before: Targett AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA/2023/0477, as amended, for the construction of two x two-storey semi-detached dwellings (each on their own lot) including car parking, basement, pool, and associated landscaping and site works at 3 Emmerick Street, Lilyfield NSW 2040, subject to the conditions in the Annexure marked A. Catchwords: APPEAL – Development application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.11, 8.14 Heritage Act 1977, s 146 Land and Environment Court Act 1979, ss 17, 34, 34AA Environmental Planning and Assessment Regulation 2021, s 38 Inner West Local Environmental Plan 2012, cll 4.3, 4.4, 6.1, 6.2, 6.3, 6.8 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022 Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: Charbel Elias (Applicant) Inner West Council (Respondent) Representation: Counsel: J Farrell (Applicant) J Marsland (Solicitor) (Respondent) Solicitors: Fortis Law (Applicant) Apex Planning and Environment Law (Respondent) File Number(s): 2023/260384 Publication restriction: Nil Judgment COMMISSIONER: Background 1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the Respondent's deemed refusal of the Applicant's Development Application (DA/2023/0477) (Development Application) seeking consent for the construction of two x two storey semi-detached dwellings (each on their own lot) including car parking, basement, pool and associated landscaping and site works on land identified as Lot 1 in Deposited Plan 982636, known as 3 Emmerick Street, Lilyfield, NSW (Subject Land). 2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act. The Development Application 1. The Subject Land benefits from an existing development consent (DA/2022/0943) for the demolition of existing structures on the Subject Land and Torrens title subdivision from one lot into two lots (Existing Consent). Pursuant to the Existing Consent, the Subject Land will be subdivided into Lot A and Lot B, each having a site area of 240.30m2. 2. The Development Application was lodged with the respondent on 19 June 2023. 3. On 16 August 2023, the proceedings were commenced, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act. 4. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 7 March 2024. I presided over the conciliation conference. 5. Amended plans and documents were filed with the Court on 7 March 2024 (Amended Development Application) cited at [39]. The amendments can be summarised as follows: 1. reducing the building height at the ground and first floors; 2. further increasing the northern side setback; 3. updating the architectural, landscape and stormwater plans; 4. providing an updated geotechnical report; and 5. providing updated BASIX and NaTHERS Certificates. 1. 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. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement. 2. 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. Jurisdictional considerations 1. 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). I form this state of satisfaction for the reasons that follow. Owner's consent 1. The Applicant is one part owner of the Subject Land. The other owner of the Subject Land, Mr Haowei Sun, provided landowner's consent to the Development Application on 24 May 2023 as per the letter contained in tab 12 of the Class 1 Application. Inner West Local Environmental Plan 2022 1. The Subject Land is zoned R1 General Residential under the Inner West Local Environmental Plan 2012 (IWLEP). Accordingly, semi-detached dwellings are permitted with consent in the R1 zone. I have had regard to the zone objectives which are extracted below: * To provide for the housing needs of the community. * To provide a variety of housing types and densities. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. * To provide residential development that maintains the character of built and natural features in the surrounding area. 1. The parties believe that the Amended Development Application is consistent with these objectives. 2. The parties agree that cl 4.3 (height of buildings) does not apply to the Subject Land as there is no prescribed height of building control for the Subject Land under the IWLEP. 3. The parties agree that cl 4.3C (landscaped area for residential accommodation in Zone R1) applies to the Subject Land as the Subject Land is identified in "Area 1" on the Key Sites Map (Sheet KYS_004) in accordance with cl 4.3C(2). Clause 4.3C(3)(a)(ii) requires that the landscaped area is to be at least 20% of the site area (for lot sizes larger than 235m2) and cl 4.3C(3)(b) requires that the site coverage does not exceed 60% of the site area. 4. Lot A has a proposed landscaped area of 54.57m2 or 22.71% and site coverage of 138.08m2 or 57.46%. Lot B has a proposed landscape area of 50.50m2 or 21.02% and site coverage of 137.09m2 or 57.05%. Therefore, the parties agree that both Lot A and Lot B are compliant with cl 4.3C of the IWLEP. 5. Pursuant to cl 4.4(2) of the IWLEP, a maximum floor space ratio (FSR) development standard of 0.8:1 applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard. 6. Pursuant to cl 6.1 of the IWLEP, development consent is required for the carrying out of specified works on land shown on the Acid Sulfate Soils Map. The parties agree that the Subject Land is mapped as "Class 5" on the Acid Sulfate Soils map (Sheet ASS_04), however, no works are proposed below 5m AHD and the water table is not likely to be lowered below 1 metre AHD. Therefore, the parties agree that cl 6.1 does not apply to the Amended Development Application. 7. Pursuant to cl 6.2(2) of the IWLEP, development consent is required for earthworks unless certain exemptions apply. The parties agree that cl 6.2 applies to the Amended Development Application. Pursuant to cl 6.2(3), in deciding whether to grant development consent for earthworks, the consent authority must consider the following matters: 1. the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, 2. the effect of the development on the likely future use or redevelopment of the land, 3. the quality of the fill or the soil to be excavated, or both, 4. the effect of the development on the existing and likely amenity of adjoining properties, 5. the source of any fill material and the destination of any excavated material, 6. the likelihood of disturbing relics, and 7. the proximity to and potential for adverse impact on any watercourse, drinking water catchment or environmentally sensitive area. 1. The parties agree that the Amended Development Application can be approved having regard to the matters set out in cl 6.2(3) above for the following reasons: 1. The Amended Development Application is unlikely to disrupt or detrimentally affect existing drainage patterns and soil stability in the locality having regard to the submitted stormwater plans and geotechnical report. Further, an additional structural and geotechnical report is required pursuant to Condition 24 of the Agreed Conditions. 2. The effect of the proposed development can be considered having regard to the nature of the development proposed, the documents that comprise the Amended Development Application, and the Agreed Conditions. 3. The parties agree that the additional structural and geotechnical report required pursuant to Condition 24 of the Agreed Conditions can be regarded in the consideration of the quality of the soil to be excavated from the Subject Land. For completeness, I also note that the Geotechnical Investigation Report prepared by Nepean Geotechnics dated 1 November 2023 (Geotechnical Report) (forming part of the Amended Development Application) relevantly considers the quality of the soil to be excavated from the Subject Land. 4. The effect of the proposed development on the existing and likely amenity of adjoining properties has been considered and addressed in Condition 31 and the requirements listed on page 20 of the Agreed Conditions. 5. Condition 11 of the Agreed Conditions requires a waste management plan to be prepared prior to the commencement of any works and there are asbestos removal requirements on page 22 of the Agreed Conditions. 6. The parties agree that given the historical use of the Subject Land, the discovery of relics is unlikely but would be governed by s 146 of the Heritage Act 1977 if required. 7. Given the location of the Subject Land is in a well developed residential area, there is no potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area. 1. Having regard to the above, I am satisfied that the matters listed in cl 6.2(3) of the IWLEP have been considered in the determination of the Amended Development Application. 2. Pursuant to cl 6.3 of the IWLEP, development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: 1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and 2. includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and 3. avoids a significant adverse impact of stormwater runoff on adjoining properties, native bushland and receiving waters, or if an impact cannot reasonably be avoided, minimises and mitigates the impact. 1. The parties agree that the matters listed in cl 6.3(3) of the WLEP are satisfied for the following reasons: 1. The Amended Development Application is supported by landscape plans which are compliant with the overall area for landscaping. They show subsoil drainage to lawn and garden beds. Rainwater tanks and filtration devices are provided in the stormwater plans. 2. Rainwater tanks for water reuse are provided in the stormwater plans. 3. As a result of the proposed stormwater drainage infrastructure including rainwater tanks, filtration devices and connection to Council's stormwater system on Emmerick Street, no significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters will occur. 1. Having regard to the above, I am satisfied of the matters listed in cl 6.3(3) of the IWLEP. 2. The parties agree that cl 6.8 of the IWLEP applies to the Subject Land as the Subject Land is located within the ANEF 25-30 contours and involves the erection of new buildings. The Amended Development Application is accompanied by an Aircraft Noise Assessment prepared by Acouras Consultancy dated 23 May 2023 (Noise Assessment) which provides acoustic recommendations regarding construction materials and glazing. 3. Having regard to the Noise Assessment and Agreed Conditions, I have considered the matters set out in cl 6.8(3)(a) and (b) and am satisfied of the requirement set out in cl 6.8(3)(c). State Environmental Planning Policy (Resilience and Hazards) 2021 1. I accept the parties' submission that the requirements of cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land's longstanding history of residential use with no known history of potentially contaminating uses or events and the fact that the Geotechnical Report does not identify any issues of concern. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 1. The Amended Development Application is accompanied by a BASIX certificate (Cert No. 139542M_02, dated 28 February 2024) prepared by Greenworld Architectural Drafting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) and the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). For completeness, I note that State Environmental Planning Policy (Sustainable Buildings) 2022 does not apply to a development application submitted but not finally determined before 1 October 2023 and the provisions of SEPP BASIX continue to apply to the Amended Development Application. Leichhardt Development Control Plan 2013 1. I note that the parties have considered the Leichhardt Development Control Plan 2013 (LDCP) in relation to the Amended Development Application and are satisfied that the Amended Development Application is acceptable and can be granted subject to conditions. 2. For the purposes of s 4.15(1)(a)(iii) of the EPA Act, I confirm that I have considered the relevant provisions of the LDCP as they relate to the Amended Development Application. Remaining matters in s 4.15(1) of the EPA Act 1. The matters set out in s 4.15(1)(a)(i), (iii), (b), (c), and (e) have been considered above. 2. In relation to s 4.15(1)(a)(ii), the parties have raised the proposed Remediation of Land State Environmental Planning Policy (Proposed Remediation SEPP) (draft Explanation of Intended Effect publicly exhibited between 31 January 2018 and 13 April 2018) and the Draft Environment State Environmental Planning Policy (Proposed Environment SEPP) (publicly exhibited between 31 October 2017 to 31 January 2018) as being a relevant consideration under s 4.15(ii) of the EPA Act. 3. I have considered the Proposed Remediation SEPP and Proposed Environment SEPP, to the extent they are relevant to the Amended Development Application, in accordance with s 4.15(1)(ii). 4. In relation to s 4.15(1)(d) and (e), the Development Application, as lodged, was notified between 15 November and 6 December 2022. Four written submissions objecting to the proposed development were received in response to the notification. One of the objectors addressed the Court at the on-site view associated with the conciliation conference and the Court visited this objector's property. 5. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application. 6. The parties agree that the Amended Development Application did not require re-notification as the environmental impacts of the amendments will be the same or lesser than the original proposal and that the impacts on the owners and occupiers of adjoining land will not be detrimentally affected in any manner described in the relevant section of the Respondent's Community Participation Plan. 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. 3. The Court notes that: 1. The respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending its Development Application in accordance with the following amended plans and documents: No. Document Ref No. Prepared by Rev. Date 1. Architectural Plans Cover Sheet 00 Derek Raithby 12 Feb 2024 Site Analysis Plan 01 Derek Raithby 12 Feb 2024 Basement Floor Plan 02 Derek Raithby 12 Feb 2024 Ground Floor Plan 03 Derek Raithby 12 Feb 2024 First Floor Plan 04 Derek Raithby 12 Feb 2024 Roof Plan 05 Derek Raithby 12 Feb 2024 Elevation 1 of 2 06 Derek Raithby 12 Feb 2024 Elevation 2 of 2 07 Derek Raithby 12 Feb 2024 Section-A 08 Derek Raithby 12 Feb 2024 Section-B 09 Derek Raithby 12 Feb 2024 Calculation FSR 10 Derek Raithby 12 Feb 2024 Calculation Landscape & Site Coverage 11 Derek Raithby 12 Feb 2024 Windows & Door Schedule 12 Derek Raithby 12 Feb 2024 Finishes Schedule 13 Derek Raithby 12 Feb 2024 Shadow Diagrams 14 Derek Raithby 12 Feb 2024 Shadow Diagrams 15 Derek Raithby 12 Feb 2024 Solar Access Diagram 16 Derek Raithby 12 Feb 2024 Site Management Plan 17 Derek Raithby 12 Feb 2024 Streetscape Elevation 18 Derek Raithby 12 Feb 2024 North Elevational Shadow Diagram @ 1 Emmerick Street 1 of 3 19a Derek Raithby 12 Feb 2024 North Elevational Shadow Diagram @1 Emmerick Street 2 of 3 19b Derek Raithby 12 Feb 2024 North Elevational Shadow Diagram @1 Emmerick Street 3 of 3 19c Derek Raithby 12 Feb 2024 East Elevational Shadow Diagram @ 1 Emmerick Street 20 Derek Raithby 12 Feb 2024 Solar Access Diagram - Sun View - 1 of 3 21 Derek Raithby 12 Feb 2024 Solar Access Diagram - Sun View - 2 of 3 22 Derek Raithby 12 Feb 2024 Solar Access Diagram - Sun View - 3 of 3 23 Derek Raithby 12 Feb 2024 28. Landscape Plans Landscape Concept Plan 1 Vision Dynamics D 29 Feb 2024 30. Stormwater Plans Coversheet and Legends DA-SW100 JCO Consultants 4 01 Mar 2024 General Notes and Specifications DA-SW101 JCO Consultants 4 01 Mar 2024 Stormwater Management Plan – Basement Floor DA-SW200 JCO Consultants 4 01 Mar 2024 Stormwater Management Plan – Ground Floor DA-SW201 JCO Consultants 4 01 Mar 2024 Details Sheet DA-SW300 JCO Consultants 4 01 Mar 2024 Erosion and Sediment Control Plan & Details DA-SW600 JCO Consultants 4 01 Mar 2024 37. Geotechnical Investigation Report Nepean Geotechnics 2 01 Nov 2023 38. Basix Certificate Greenworld Architectural Drafting 2 28 Feb 2024 39. NatHERS Certificate Greenworld Architectural Drafting - 28 Feb 2024 1. The Applicant filed the amended plans outlined above with the Court on 7 March 2024. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA/2023/0477, as amended, for the construction of two x two-storey semi-detached dwellings (each on their own lot) including car parking, basement, pool, and associated landscaping and site works at 3 Emmerick Street, Lilyfield NSW 2040, subject to the conditions in the Annexure marked A. ………………………. N Targett Acting Commissioner of the Court 260384.23 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: 21 March 2024