Land and Environment Court New South Wales Medium Neutral Citation: Sky Property and Planning Pty Ltd as trustee for Sky Property and Planning Trust v Inner West Council [2024] NSWLEC 1735 Hearing dates: Conciliation conference on 14 November 2024 Date of orders: 14 November 2024 Decision date: 14 November 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) Leave is granted for the change of name of the applicant to be "Sky Property and Planning Pty Ltd as trustee for Sky Property and Planning Trust". (2) The Applicant's written request under cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by Sky Town Planning and dated October 2024 seeking a variation of the development standard for landscaped areas set out in cl 4.3C of the IWLEP, is upheld. (3) The Applicant's written request under cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by Sky Town Planning and dated November 2024 seeking a variation of the development standard for floor space ratio set out in cl 4.4 of the IWLEP, is upheld. (4) The appeal is upheld. (5) Development Application No DA/2023/0503, as amended, for alterations and additions to residential development, including a new boat shed, at 40 Nicholson Street, Balmain East, is determined by the grant of consent, subject to the conditions of consent in Annexure 'A'. Catchwords: APPEAL – development application – boat shed replacing a deck – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, ss 34, 34AA Environmental Planning and Assessment Regulation 2021, ss 37, 38 Inner West Local Environmental Plan 2022, cll 4.3C, 4.4, 4.6, 5.10, 5.21, 6.1, 6.3, 6.5, 6.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.28, 6.33 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 Category: Principal judgment Parties: The Trustee for Sky Property and Planning Trust (Applicant) Inner West Council (Respondent) Representation: Counsel: V Conomos (Solicitor)(Applicant) M Pearce (Solicitor)(Respondent) Solicitors: Conomos Legal (Applicant) Inner West Council (Respondent) File Number(s): 2024/215067 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing dwelling house for the construction of a new boat shed at 40 Nicholson Street, Balmain East. The development application, DA/2023/0503, was refused by the respondent on 14 May 2024. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 14 November 2024. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The final agreement was signed and submitted on the same date (and replaces an earlier iteration filed on 12 November 2024). 4. The agreement follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments include a change to the orientation of the boat shed to reduce its appearance from the foreshore so that it is comparable to the appearance of other boat sheds along the foreshore, as well as changes to the materials and finishes to include sandstone in the new retaining walls. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement of Jurisdictional Prerequisites that sets out the matters that the parties agree are required to be satisfied prior to the grant of development consent. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 3 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties' have agreed upon (see McMillan v Taylor (2020) 111 NSWLR 634; [2023] NSWCA 183 at [4] and [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: 1. The development works are for the purposes of a dwelling house, which is a permissible use in the R1 General Residential zone in which the site is located, pursuant to the Inner West Local Environmental Plan 2022 (IWLEP). 2. The proposed development breaches the development standard for floor space ratio (FSR). The development standard establishes a maximum FSR of 0.7:1, pursuant to cl 4.4 of the IWLEP. The proposed development will result in a FSR on the site of 0.78:1, which represents a breach of the maximum FSR by 11.94% or 39m2. However, the boat shed is only 18.72m2. The amended development application is accompanied by a written request pursuant to cl 4.6 of the IWLEP as it applied at the time the development application was lodged. I am satisfied that the request meets the requirements of cl 4.6(3) and can form the basis of the state of satisfaction required by cl 4.6(4)(a). In particular: 1. The written request adequately establishes sufficient environmental planning grounds that justify the breach, by demonstrating that the existing dwelling contravenes the FSR development standard and the boat shed replaces a dilapidated pool deck. 2. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary as the objectives of the FSR development standard are met notwithstanding the non-compliance. 3. For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the FSR development standard. 1. The proposed development breaches the development standard for minimum landscaped area in cl 4.3C(3)(a)(ii) of the IWLEP, which requires 20% of the site area to be landscaped. The proposed development will result in a landscaped area of 73.47m2, whereas 91.1m2 is required. However, the proposed development increases the landscaped area from 73.34m2. The amended development application is accompanied by a written request pursuant to cl 4.6 of the IWLEP as it applied at the time the development application was lodged. I am satisfied that the request meets the requirements of cl 4.6(3) and can form the basis of the state of satisfaction required by cl 4.6(4)(a). In particular: 1. The written request adequately establishes sufficient environmental planning grounds that justify the breach, by demonstrating that the development application increases the landscaped area. 2. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary as the objectives of the development standard are met notwithstanding the non-compliance. 3. For the reasons outlined in the written request, the proposal is in the public interest as it is consistent with the objectives of the zone and of the development standard. 1. The proposed development complies with the maximum site coverage development standard in cl 4.1C(3)(b) of the IWLEP. 2. The site on which the development is proposed is located within the Balmain East Heritage Conservation Area. I have considered the impact of the proposed development on the heritage conservation area, pursuant to cl 5.10(4) of the IWLEP. 3. Clause 5.21 of the IWLEP, concerning flood planning, applies to the site, and based on the Agreed Statement, I have considered the matters in cl 5.21(3) of the WLEP and I am satisfied of the matters in cl 5.21(2). 4. The site is mapped as having Class 5 Acid Sulfate Soils but the proposed development will not include works by which the watertable is likely to be lowered on adjacent land. As such, cl 6.1 of the IWLEP does not apply. 5. Clause 6.3 of the IWLEP concerns stormwater management and applies to the proposed development. Based on the stormwater drainage plan dated 6 February 2023, I am satisfied of the matters in cl 6.3(3). 6. The site is within the foreshore area as defined by cl 6.5 of the IWLEP. The proposed development is permitted by cl 6.5(3)(b) and based on the plans by Design Plus Drafting and the Agreed Statement, I am satisfied of the matters in cl 6.5(4) of the IWLEP. Based on the Agreed Statement and the scope of the works, I have also considered the matters in cl 6.6 of the IWLEP. 7. The rear of the site is within the foreshore area as defined by Part 6.3 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). Sections 6.28 and 6.33 therefore apply. Based on the plans by Design Plus Drafting, and the Agreed Statement, I am satisfied of the matters in s 6.28(2) and I have considered the matters in s 6.33. 8. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated. 9. The development application was notified from 5 to 19 December 2023, and one submission was received. I have considered the issues raised in that submission. 1. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 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 evaluative judgment on the matters that were originally in dispute between the parties, or 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 that: 1. Inner West Council as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA/2023/0503, in accordance with the following documents which were filed with the Court on 12 November 2024: Plan, Revision and Issue No. Plan Name Date Prepared by A90 P12 Demolition Floor Plans 01.10.2024 Design Plus Drafting A100 P13 Site Plan 04.10.2024 Design Plus Drafting A102 P13 Proposed Pool Level 04.10.2024 Design Plus Drafting A103 P13 Proposed Boatshed Level 04.10.2024 Design Plus Drafting A104 P13 Roof Plan 04.10.2024 Design Plus Drafting A200 P13 Elevations 04.10.2024 Design Plus Drafting A200.1 P13 Fence Elevation Detail 04.10.2024 Design Plus Drafting A201 P13 Elevations 04.10.2024 Design Plus Drafting A202 P13 Elevations 04.10.2024 Design Plus Drafting A203 P13 Elevations 04.10.2024 Design Plus Drafting A300 P13 Sections/schedules 04.10.2024 Design Plus Drafting A800 P13 Materials & Finishes Schedule 04.10.2024 Design Plus Drafting 2697.GD.01, Landscape Plan 26.09.2024 Greenland Design Issue C Clause 4.6 Variation November 2024 Sky Town Planning Statement (Floor Space Ratio) Clause 4.6 Variation Statement (Landscaped Areas for Residential Accommodation in October 2024 Sky Town Planning Zone R1) 1. The Court orders that: 1. Leave is granted for the change of name of the applicant to be "Sky Property and Planning Pty Ltd as trustee for Sky Property and Planning Trust". 2. The Applicant's written request under cl 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP), prepared by Sky Town Planning and dated October 2024, seeking a variation of the development standard for landscaped areas set out in cl 4.3C of the IWLEP, is upheld. 3. The Applicant's written request under cl 4.6 of the IWLEP, prepared by Sky Town Planning and dated November 2024, seeking a variation of the development standard for floor space ratio set out in cl 4.4 of the IWLEP, is upheld. 4. The appeal is upheld. 5. Development Application No DA/2023/0503, as amended, for alterations and additions to residential development, including a new boat shed, at 40 Nicholson Street, Balmain East, is determined by the grant of consent, subject to the conditions of consent in Annexure 'A'. J Gray 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 November 2024