Land and Environment Court New South Wales Medium Neutral Citation: Hobson v Inner West Council [2024] NSWLEC 1246 Hearing dates: Conciliation conference on 8 and 9 May 2024 Date of orders: 14 May 2024 Decision date: 14 May 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The appeal is upheld. (2) Development consent is granted to DA/2022/1022 for the demolition of existing structures and construction of a two-storey dwelling house with garage, landscaping and associated works at 1 Rose Street, Birchgrove, subject to conditions annexed here to and marked Annexure A. Catchwords: DEVELOPMENT APPLICATION: 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 Environmental Planning and Assessment Regulation 2021 Inner West Local Environmental Plan 2022, cll 2.3, 2.7, 5.10, 6.2, 6.3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Adam Hobson (Applicant) Inner West Council (Respondent) Representation: Counsel: J Reid (Applicant) J Marsland (Solicitor) (Respondent) Solicitors: Mjlls Oakley (Applicant) Apex Planning and Environment Law (Respondent) File Number(s): 2023/314283 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, related to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent's refusal of development application DA/2022/1022 (DA). The DA sought consent for demolition of existing structures and the construction of a two-storey dwelling house with garage, landscaping and associated works on the property at 1 Rose Street, Birchgrove (site). Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 9 and 10 May 2024. I presided over the conciliation conference. 2. By the conclusion of the conciliation conference, the parties had come to an 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, subject to amended plans, and granting consent to the DA subject to agreed conditions. 3. 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. Jurisdiction 1. The parties' decision involves the Court exercising the consent authority function, under s 4.16 of the EPA Act, to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified certain jurisdictional prerequisites of relevance in these proceedings and how they have been or could be satisfied in a jurisdictional statement, provided to the Court on 9 May 2024. In regard to jurisdiction and having regard to this statement, I find as follows. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) 1. Pursuant to s 4.6(1), 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. I am advised by the parties that the respondent has considered whether the site is contaminated and, on account of the site being historically used for residential purposes with no known history of potentially contaminating uses and events, is satisfied that no further investigation of the site is warranted. On this basis, I am satisfied that the requirements of SEPP Resilience and Hazards are met. Inner West Local Environmental Plan 2022 (IWEP) 1. I note the proposal is for permissible development in the applicable R1 General Residential zone in IWLEP. Demolition is permissible under cl 2.7. 2. I accept the advice of the parties that the proposal does not breach any development standards under IWLEP. 3. As the site falls within Birchgrove and Ballast Point Road Heritage Conservation Area, under cl 5.10(4), there is a need to consider the effect of the proposed development on the heritage significance of the area concerned. The heritage experts deliberated considerably in to coming to what was agreed to be an acceptable resolution of heritage-related concerns and coming up with agreed plan amendments and conditions to this end. I accept the agreed advice of the parties that the proposal is acceptable in regard to heritage conservation. 4. The site is classified as Class 5 acid sulphate soils land. While the site is located within 500m of Class 2 land, the parties advise in the jurisdictional statement that the triggering effects, otherwise requiring an acid sulphate soils management plan, do not apply. 5. In regard to stormwater management, development consent must not be granted unless the consent authority is satisfied in relation to the matters listed at cl 6.3(3)(a)-(c). The jurisdictional statement directly indicates that Council is satisfied in relation to each of these matters. With this advice, I too am satisfied in regard to each of the listed matters subject to the agreed conditions of consent. Other matters 1. The parties advise the proposal was notified in accordance with requirements and a single objecting submission was received and that this submission has been considered in the finalisation of the agreement. Conclusion 1. Based on the above details, 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. It follows that I am in turn required 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 3. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. Notification 1. The Court notes that the Respondent, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending DA/2022/1022 in accordance with the documents listed below. Amended Architectural Plans Plan name Drawing Ref Revision Date Prepared by site plan - existing 2108-00-00-01 Revision C 29.01.24 Ian Moore Architects site analysis - existing 2108-00-00-02 Revision B 29.01.24 Ian Moore Architects level 01 plan - existing 2108-00-01-01 Revision C 29.01.24 Ian Moore Architects roof plan - existing 2108-00-01-02 Revision C 29.01.24 Ian Moore Architects south-west elevation – street - existing 2108-00-02-01 Revision C 29.01.24 Ian Moore Architects south-west elevation -courtyard - existing 2108-00-02-02 Revision C 29.01.24 Ian Moore Architects south-east elevation – park - existing 2108-00-02-03 Revision C 29.01.24 Ian Moore Architects south-east elevation - existing 2108-00-02-04 Revision C 29.01.24 Ian Moore Architects north-east elevation - existing 2108-00-02-05 Revision C 29.01.24 Ian Moore Architects north-west elevation - existing 2108-00-02-06 Revision C 29.01.24 Ian Moore Architects section 01 - existing 2108-00-03-01 Revision B 04.07.22 Ian Moore Architects section 02 - existing 2108-00-03-02 Revision C 23.01.24 Ian Moore Architects level 01 plan - demolition 2108-01-01-01 Revision B 01.05.24 Ian Moore Architects roof plan - demolition 2108-01-01-02 Revision B 01.05.24 Ian Moore Architects site plan - proposed 2108-02-00-01 Revision D 01.05.24 Ian Moore Architects level 01 plan - proposed 2108-02-01-01 Revision C 01.05.24 Ian Moore Architects level 02 plan - proposed 2108-02-01-02 Revision C 01.05.24 Ian Moore Architects roof plan - proposed 2108-02-01-03 Revision C 01.05.24 Ian Moore Architects south-west elevation - street - proposed 2108-02-02-01 Revision D 01.05.24 Ian Moore Architects south-west elevation - courtyard - proposed 2108-02-02-02 Revision D 01.05.24 Ian Moore Architects south-east elevation - park - proposed 2108-02-02-03 Revision C 01.05.24 Ian Moore Architects south-east elevation - proposed 2108-02-02-04 Revision D 01.05.24 Ian Moore Architects north-east elevation - proposed 2108-02-02-05 Revision D 01.05.24 Ian Moore Architects north-west elevation - proposed 2108-02-02-06 Revision D 01.05.24 Ian Moore Architects section 01 - proposed 2108-02-03-01 Revision D 01.05.24 Ian Moore Architects section 02 - proposed 2108-02-03-02 Revision D 01.05.24 Ian Moore Architects sections 03 + 04 - proposed 2108-02-03-03 Revision D 01.05.24 Ian Moore Architects sections 05 + 06 - proposed 2108-02-03-04 Revision D 01.05.24 Ian Moore Architects colours, materials and finishes schedule 2108-14-01-01 Revision D 01.05.24 Ian Moore Architects south-west elevation - street - proposed 2108-14-02-01 Revision C 01.05.24 Ian Moore Architects south-west elevation - courtyard - proposed 2108-14-02-02 Revision C 01.05.24 Ian Moore Architects south-east elevation - park - proposed 2108-14-02-03 Revision C 01.05.24 Ian Moore Architects south-east elevation - proposed 2108-14-02-04 Revision C 01.05.24 Ian Moore Architects north-east elevation - proposed 2108-14-02-05 Revision C 01.05.24 Ian Moore Architects north-west elevation - proposed 2108-14-02-06 Revision C 01.05.24 Ian Moore Architects floor area diagrams – existing + proposed 2108-15-01-01 Revision C 23.01.21 Ian Moore Architects View from east - proposed 2108-15-02-01 Revision D 01.05.24 Ian Moore Architects Shadow diagrams 2108-15-03-02 Revision C 01.05.24 Ian Moore Architects stormwater drainage diagram- proposed 2108-15-04-01 Revision B 23.01.24 Ian Moore Architects soil and water management plan 2108-15-05-01 Revision A 04.07.22 Ian Moore Architects Building location zone – level 01 plan 2108-15-601-01 Revision A 23.01.24 Ian Moore Architects Building location zone – roof plan 2108-15-06-02 Revision A 23.01.24 Ian Moore Architects Amended Landscape Plans Plan name Drawing ref Revision Date Prepared by Site Calculations | DA Notes L101 Revision B 01.05.24 Outdoor Establishments Landscape Plan | Level 01 L102 Revision A 01.05.24 Outdoor Establishments Landscape Plan | Level 02 L103 Revision B 01.05.24 Outdoor Establishments Plant Schedule | Plant Imagery L104 Revision B 01.05.24 Outdoor Establishments Reports Report name Ref Revision Date Prepared by Schedule of Amendments - Revision A 03.04.24 Ian Moore Architects Heritage Impact Assessment Report - March 2024 Zoltan Kovacs Architect Building and Timber Pest Inspection Report - - 05.06.18 Jim's Building Inspections Existing Structural Analysis Scope of Work and Cost Estimate DP_0041 - 12.12.23 Bright Build Structural Engineering Report - - 07.12.23 Cantilever Consulting Engineers BCA Assessment Report P24007-BCA-r1 04.03.24 BCA Clarity Arboricultural Impact Assessment 1RSB12/1/24 - 12.01.24 Hugh the Arborist Response to Contention 1(e) of Council's Statement of Facts and Contentions - - 05.03.24 Ian Moore Architects Locality roof form assessment and statement - - 02.04.24 Ian Moore Architects Design Statement - - 22.04.24 Ian Moore Architects Landscape Design Statement - - 03.05.24 Outdoor Establishments Photomontages - - April 2024 Ian Moore Architects Orders 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to DA/2022/1022 for the demolition of existing structures and construction of a two-storey dwelling house with garage, landscaping and associated works at 1 Rose Street, Birchgrove, subject to conditions annexed here to and marked Annexure A. Peter Walsh 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: 14 May 2024