Land and Environment Court New South Wales Medium Neutral Citation: Metric Interiors & Projects Pty Ltd v Inner West Council [2024] NSWLEC 1317 Hearing dates: Conciliation conference 29 May 2024 Date of orders: 054 June 2024 Decision date: 13 June 2024 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) (1) The appeal is upheld. (2) (2) Development Application 2023/0046 (DA demolition of existing structures and the construction of a 2 x 2 storey semi-detached dwellings each with basement storage, outbuildings, swimming pools and other ancillary work and Torrens title subdivision at Lot 42 in Deposited Plan 1251014 also known as 72 Johnston Street, Annandale in the State of New South Wales is determined by the grant of consent subject to conditions contained in Annexure 'B'. Catchwords: DEVELOPMENT APPLICATION: dwelling house development in R1 General Residential zone – conciliation conference – agreement between parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.7 Land and Environment Court Act 1979, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, s 38 Inner West Local Environmental Plan 2022, Sch 5, cll 4.1A, 4.3C, 4.4, 5.10, 6.1, 6.2, 6.3, 6.4, 6.8, Sch 5 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.6, 6.7, 6.8 State Environmental Planning Policy (Transport & Infrastructure) 2021, ss 2.118, 2.119 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2 State Environmental Planning Policy (Transport & Infrastructure) 2021, ss 2.118, 2.119 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] (2018) 233 LGERA 170; [2018] NSWCA 245 Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349 Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Texts Cited: Australian Standard AS 2021-2015 'Acoustics – Aircraft Noise Intrusion – Building Siting and Construction' Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: Metric Interiors & Projects Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: J Smith (Applicant) M Pearce (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2023/348357 Publication restriction: Nil Judgment 1. COMMISSIONER: Johnston Street is a boulevard in Annandale that is reputed to measure 100 feet wide, and which is today a part of the Annandale conservation area. 2. On the western side of Johnston Street stands a single storey face brick dwelling with detached single garage and rear shed. 3. Development Application No. DA/2023/0046, lodged with Inner West Council, the Respondent in this matter, on 1 February 2023, initially proposed the demolition of the existing dwelling and other structures to permit the construction of two, 2- x storey detached dwellings, each with basement parking and car lift, outbuildings and swimming pools, Torrens title subdivision into two lots, removal of trees, landscaping and new vehicle crossing on the subject site at No. 72 Johnston Street (the original DA). 4. The original DA was lodged with consent of the owner of the land, and was notified between 8-22 February 2023. 5. As the DA was not otherwise determined, on 2 November 2023, the Applicant filed an appeal in Class 1 of the Court's jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 6. The proceedings commenced with an onsite view at which the Court, in the company of the legal representatives, the Applicants and experts, heard oral submissions from residents and their representatives. 7. Following the onsite view, the Court facilitated conciliation discussions in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act). 8. During the conciliation conference, at which I presided, the Applicant agreed to certain amendments that, in the view of the Respondent, addressed the matters in contention. 9. 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 approved the amending of the application by the Applicant, in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) (the DA as amended). 10. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted with the Court on 30 May 2024. 11. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 12. 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 [52]. 13. 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. 14. The site is located in the R1 General Residential zone, according to the Inner West Local Environmental Plan 2022 (IWLEP) in which detached dwelling development is permitted with consent, where consistent with the following objectives of the R1 zone: • To provide for the housing needs of the community. • To provide for 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 proposed development complies with the minimum lot size provision, at cl 4.1A of the IWLEP, requiring 200m2 in the R1 zone. 2. Clause 4.3C(3)(a)(ii) of the IWLEP precludes the grant of unless a minimum of 20% landscaped area is provided. Likewise, cl 4.3C(3)(b) precludes development consent unless the site coverage does not exceed 60% of the site area. 3. The IWLEP Dictionary defines landscaped area in the following terms: "landscaped area means a part of a site used for growing plants, grasses and trees, but does not include any building, structure or hard paved area." 1. In a joint expert report filed with the Court on 27 May 2024, the planning experts agree that the proposed landscaped area for Lot A is 72m2 and that the landscaped area for Lot B is 83.35m2. Both are equivalent to 20% of the relevant lot area. Likewise, on the basis of amended architectural plans, the planning experts agree that the proposed site coverage area for Lot A is 214.68m2, and that the site coverage area for Lot B is 216.70m2. Both are equivalent to 60% of the site area for the respective Lots and so comply with cl 4.3C of the IWLEP. 2. The floor space ratio applicable to each lot by operation of cl 4.4 of the IWLEP is 0.7:1. The planning experts agree that the FSR for the proposed development on each of the lots is 0.66:1, which complies with cl 4.4 of the IWLEP. 3. A Statement of Heritage Impact (SHI), prepared by Urbis dated November 2022 accompanies the DA records the ownership and occupation of the site since the grant of land to George Johnston in 1793. While the site itself is not listed for its heritage significance, the site is located within the Annadale Conservation Area (Annadale CA) identified as C1 in Sch 5 of the Inner West Local Environmental Plan 2022 (IWLEP). Additionally, four sites listed for their local heritage significance stand opposite the site, on the eastern side of Johnston Street. 4. The SHI records the likely date of construction of the existing dwelling to be in the order of 1905, with significant alterations and additions completed in 1977 in what is described as a 'Post War European Immigrant architectural style' that makes a neutral contribution to the Annadale CA. 5. A joint expert report on heritage, filed with the Court on 22 May 2024 documents the agreement of the experts that the form and character of the proposal has been amended to better reflect that of the Annandale CA, including the final selection of materials and finishes, deletion of car parking, retention of trees. As such, the effect of the proposed development on the Annandale CA is acceptable. 6. The site is identified within an area of Class 5 Acid Sulfate Soils (ASS) on the relevant map at cl 6.1 of the IWLEP. However as the entire site is greater in elevation than 5m AHD and the maximum depth of excavation is not extending below 1m AHD, the conclusion of the Review of ASS completed by Geo-environmental Engineering dated 18 April 2024 is that an ASS Management Plan is not required. 7. The proposed development includes excavation to a depth of around 3.5m that is the subject of mandatory consideration in accordance with cl 6.2 of the IWLEP. I have considered the following plans and other documents, on the basis of which I have formed an opinion that those matters at cl 6.2(3) of the IWLEP have been adequately addressed: 1. Stormwater Design Plans, prepared by Portes Project & Services Pty Ltd dated 29 May 2024 (Stormwater Plans) that depict the location and volume of onsite detention, and Rainwater tanks; drainage pathways, pits and levels; 2. Geotechnical Site Investigation Report prepared by SoilsRock dated 23 May 2024 which, at Section 5.1, recommends vibration limits of between 3-5mm/sec and, at Section 5.2, recommends soldier piling in lieu of ground anchors. 1. Additionally, I note agreed conditions of consent require the preparation of a further Structural and Geotechnical Report to confirm the proposed basement must be fully tanked to prevent the ingress of subsurface flows; all components of the basement, including footings, must be located entirely within the property boundary, with no anchors on adjoining property without obtaining owners consent prior; and that recommendations regarding the method of excavation and construction, vibration emissions and identified risks to existing structures or those on adjoining or nearby property are adopted. 2. Clause 6.3 of the IWLEP deals with Stormwater management. Subclause 6.3(3) precludes the grant of consent unless the consent authority, or the Court on appeal, is satisfied that the development 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 includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and avoids a significant adverse impact of stormwater runoff on adjoining properties, native bushland and receiving waters, or if an impact cannot be reasonably avoided, minimises and mitigates the impact. 3. The site falls to the rear of the site, away from Johnston Street and in the direction of properties known as No.s 63 and 65 Booth Street. In a joint expert report filed with the Court on 27 May 2024, the Stormwater experts agree that an easement is required in order to drain stormwater from the subject site to a lawful point of discharge, consistent with Section E1.2.2 of the Leichhardt Development Control Plan 2013. 4. The Applicant submits that the development the subject of the development application does not propose works on adjoining land, but rather depicts a path for the disposal of stormwater over adjoining land, subject to the easement that is the subject of a deferred commencement condition. 5. The purpose of depicting that pathway is to permit the Court to assess the impacts of those off-site works, in a manner consistent with that found in Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349, where there is no implied limitation on the exercise of considering matters of relevance to the development the subject of the development application, whether or not the development consent sought is subject to a deferred commencement condition (Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [37]). 6. The land on which development is proposed to be carried out is not the adjoining land, and does not involve stages as in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 (Al Maha) at [157], and does not propose conditions of consent for the undertaking of such works, which further distinguishes this case from that of Al Maha. 7. Instead, the Applicant proposes a deferred commencement condition. 8. The Stormwater Plans depict the necessary components of the stormwater drainage system proposed on the site, and the drainage pathway, pits and levels that are to be the subject of a Revised Stormwater Drainage Concept Plan, on the basis of which an easement to Drain Water-Over Downstream Landholders is to be obtained within 24 months of the grant of consent. 9. A letter from Jacksons Nature Works dated 29 May 2024 confirms a method of laser-guided under boring, suited to a pipe of the required length, with a diameter of 225mm is suited to such a pathway as is depicted on the Stormwater Plans, without removal of existing vegetation on either No.s 63 or 65 Booth Street. 10. On the basis of the amended landscape plans that retain Tree 3, a mature Norfolk Pine, and Tree 4, a mature Red Cedar, and the reduction of driveways in the front setback so as to preserve the street tree, a mature brush box, I am satisfied the development is now designed, sited and will be managed to avoid a significant adverse environmental impact pursuant to cl 6.4 of the IWLEP. 11. The site is located in an area that is adversely affected by aircraft noise, between the ANEF 20 and 25 contour north of Sydney airport. The proposed development seeks consent for subdivision so that two dwellings are proposed on the land currently occupied by a single detached dwelling. As such, the development will increase the number of dwellings affected by such noise. An acoustic report prepared by Acoustic Noise and Vibration Solutions Pty Ltd dated 23 November 2022 concludes that internal noise attenuation levels will satisfy the requirements of Australian Standard AS 2021-2015 'Acoustics – Aircraft Noise Intrusion – Building Siting and Construction'. State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. Some vegetation is proposed for removal, however those trees cited at [34] are retained. 2. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map, to which Chapter 6 of the Biodiversity SEPP applies. However the parties agree the site is not within the Foreshores and Waterways Area, is not a strategic foreshore site, a heritage item or land within a wetlands protection area. 3. Section 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised. 4. I accept the statement of Mr Marcio Portes dated 30 May 2024 that conformity with s 6.6 of the Biodiversity SEPP is achieved by providing 'ocean guard' filtration and sediment control in the onsite detention tank, and that post development flows are reduced from pre-development flows so that a neutral or beneficial effect on the water quality and water flow into the harbour results. 5. For similar reasons I have also considered those matters at s 6.7 of the Biodiversity SEPP and am satisfied that the retention of water and post development flows will keep any direct, indirect or cumulative impact on terrestrial, aquatic or migratory animals or vegetation to a minimum, and will not have an adverse impact on aquatic reserves, or in terms of erosion. 6. I do not understand the site to be subject to periodic flooding such that the considerations at s 6.8 are invoked. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. As Johnston Street is a classified road, ss 2.118 and 2.119 of State Environmental Planning Policy (Transport & Infrastructure) 2021 (the Transport SEPP) apply. 2. Section 2.118 of the Transport SEPP requires that, where subdivision is proposed to create an additional lot with dwelling entitlements, and where development of greater than a certain sum is proposed, written notice must be given to Transport for NSW (TfNSW) and that any response be taken into account. General Terms of Approval have been received from TfNSW and have been incorporated into the agreed conditions of consent. 3. Section 2.119 of the Transport SEPP applies to preclude development consent unless the consent authority, or the Court on appeal, is satisfied of those matters at subs 2.119(2). 4. The DA as amended proposes one kerb crossing and one driveway in a similar, but not identical location as that evident on site today. Onsite car parking is, if anything, reduced from the onsite parking of the existing development as a single vehicle is accommodated in the front setback, and not along the driveway currently located to the south of the existing dwelling. As such I am satisfied vehicular access to the site is required from Johnston Street as access is not possible from a road other than a classified road. I am likewise satisfied that the safety, efficiency and ongoing operation of Johnston Street will not be adversely affected as a result of vehicular access, emissions or dust or the nature, volume or frequency of vehicles using Johnston Street. State Environmental Planning Policy (Resilience and Hazards) 2021 1. On the basis of the detailed historical assessment of the site that appears in Section 3.3 of the SHI cited at [20], I accept the site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. State Environmental Planning Policy (Building sustainability Index: BASIX) 2004 1. The application is accompanied by a BASIX certificate (Cert No. 1316859M_02 dated 11 January 2023) prepared by Paul & David Consulting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004). 2. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP. 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, Inner West Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. 2023/0046 to rely on the documents as outlined in Annexure 'A'. 2. The Applicant filed the plans and documents listed in Annexure A on 30 May 2024 Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA/2023/0046 for the demolition of existing structures and the construction of a 2 x 2 storey semi-detached dwellings each with basement storage, outbuildings, swimming pools and other ancillary work and Torrens title subdivision at Lot 42 in Deposited Plan 1251014 also known as 72 Johnston Street, Annandale in the State of New South Wales is determined by the grant of consent subject to conditions contained in Annexure 'B'. T Horton Commissioner of the Court Annexure B ********** 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 June 2024