Land and Environment Court New South Wales Medium Neutral Citation: Nguyen v Inner West Council [2024] NSWLEC 1767 Hearing dates: Conciliation conference on 12 November 2024 Date of orders: 28 November 2024 Decision date: 28 November 2024 Jurisdiction: Class 1 Before: Washington C Decision: The Court orders: (1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Council's costs, thrown away as a result of the amendment of the application, of $2,500.00 within 28 days of these orders. (2) The appeal is upheld. (3) Development Application DA/2023/0730 for demolition of existing structures and construction of four semi-detached dwellings with Torrens title subdivision into four (4) lots at 149 Unwins Bridge Road, Tempe, is determined by granting development consent, subject to the conditions in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – subdivision – semi-detached dwellings – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, 38 Inner West Local Environmental Plan 2022, cll 2.6, 2.7, 4.1, 4.3, 4.4, 5.10, 5.21, 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 State Environmental Planning Policy (Sustainable Buildings) 2022 Category: Principal judgment Parties: Van Luan Nguyen (First Applicant) Thu Trang Pham (Second Applicant) Inner West Council (Respondent) Representation: Counsel: R O'Gorman-Hughes (Applicant) J Marsland (Solicitor) (Respondent) Solicitors: Law Hartley Solicitors (Applicant) Apex Planning and Environment (Respondent) File Number(s): 2023/459510 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Inner West Council, of development application DA/2023/0730 . This application seeks consent for the demolition of existing structures, construction of four semi-detached dwellings, Torrens title subdivision to four lots, and associated works at 149 Unwins Bridge Road, Tempe. The site is legally known as Lot 1, Section 14, DP 1551 and Lot 6, DP 839169. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. Following an earlier unsuccessful conciliation conference, a hearing was held on 12 November 2024. However, at the commencement of the hearing, the parties indicated they had resolved the issues in dispute in these proceedings, and requested a further conciliation conference. The Court subsequently 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 the same day and over which I presided. At this conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately respond to the Council's contentions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the 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, which the parties explained in a jurisdictional note. From this I note the following points. Jurisdictional matters 1. The development application was made with the written consent of the owner of the land. 2. The application was adequately notified from 27 September to 11 October 2023, during which time eleven submissions were received. No further oral submissions were made at the commencement of proceedings. The parties submit, and I accept, that the issues raised in these submissions have been adequately addressed in the amended application. 3. The subject site is zoned R2 Low Density Residential under the Inner West Local Environmental Plan 2022 (IWLEP), within which development for the purposes of semi-detached dwellings is permissible with consent. The proposed development is consistent with the objectives of this zone. 4. Subdivision is permissible with consent pursuant to cl 2.6, and demolition is permissible with consent pursuant to cl 2.7 of the IWLEP. 5. Pursuant to cl 4.1, the site is not mapped as having a minimum subdivision lot size. 6. Pursuant to IWLEP cl 4.3, a maximum building height of 9.5m applies to the subject site. The proposed development complies with this development standard with a maximum height of 9.42m. 7. IWLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 1:1. The proposed development again complies with this development standard with a maximum FSR of 0.75:1. 8. The site is not identified as a heritage item, nor located within a heritage conservation area pursuant to IWLEP cl 5.10. 9. The site is also not identified in the flood planning area pursuant to IWLEP cl 5.21. 10. Pursuant to IWLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, but is not within 500 metres of any class 1, 2, 3 or 4 land by which the water table is likely to be lowered below 1m Australian Height Datum. Accordingly, there are no further requirements under this clause. 1. Minor earthworks are proposed in this application to accommodate the ground floor slab and footings. Based on the parties' submission, the information contained in the Statement of Environmental Effects, and the amended architectural drawings, I accept that the matters listed in IWLEP cl 6.2 have been considered and the earthworks proposed in this application are acceptable. 2. From the parties' submission and the stormwater plans by Capital Engineering Consultants, dated 15 October 2024, I accept that the proposed development meets the requirements for stormwater management pursuant to IWLEP cl 6.3. 1. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. The parties submit, and I accept, that there is no known contamination on the site nor any history of contaminating activities and that, subject to the agreed conditions of consent, the site is suitable for the intended, continued residential use. 2. The savings provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 provide that for applications submitted but not finally determined before 1 October 2023, the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 apply. Accordingly, as the proposed development is considered 'BASIX affected development', the application is accompanied by a BASIX certificate. Conditions of consent require compliance with this certificate. Conclusion 1. For these reasons, 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. 2. As the parties' decision is one 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. 3. The Court notes: 1. Pursuant to clause 38(1) of the Environmental Planning and Assessment Regulation 2021, Inner West Council as the relevant consent authority has agreed to the applicant amending Development Application DA/2023/0730 to incorporate the following amended plans and additional information: 1. Architectural plans, prepared by ES Design Drawing No. Drawing Title Revision Date 22201-01 Demolition Plan E 11 November 2024 22201-02 Proposed Subdivision Plan E 11 November 2024 22201-03 Proposed Site Plan E 11 November 2024 22201-04 Proposed Ground Floor Plan E 11 November 2024 22201-05 Proposed First Floor Plan E 11 November 2024 22201-06 Proposed Attic Plan E 11 November 2024 22201-07 Proposed Roof Plan E 11 November 2024 22201-08 North West and North East Elevation E 11 November 2024 22201-09 South East and South West Elevation E 11 November 2024 22201-10 Section View Dwelling 1 E 11 November 2024 22201-11 Section View Dwelling 2 E 11 November 2024 22201-12 Section View Dwelling 3 E 11 November 2024 22201-13 Section View Dwelling 4 E 11 November 2024 22201-14 Driveway Grade Details E 11 November 2024 22201-15 Front Fence Details E 11 November 2024 22201-16 Front Fence Details E 11 November 2024 22201-17 Front Fence Details E 11 November 2024 22201-18 Schedule of External Materials, Colours and Finishes E 11 November 2024 22201-19 Gross Floor Area Calculation E 11 November 2024 22201-20 Landscape Area Calculation Sheet E 11 November 2024 22201-21 Tree Protection Zones E 11 November 2024 22201-22 Sections Through Decks E 11 November 2024 22201-23 3D Views E 11 November 2024 22201-24 SHADOW DIAGRAMS EXISTING – 21st JUNE 9AM, 10AM E 11 November 2024 22201-25 SHADOW DIAGRAMS EXISTING – 21st JUNE 11AM, 12PM E 11 November 2024 22201-26 SHADOW DIAGRAMS EXISTING – 21st JUNE 1PM, 2PM E 11 November 2024 22201-27 SHADOW DIAGRAMS EXISTING – 21st JUNE 3PM E 11 November 2024 22201-28 SHADOW DIAGRAMS PROPOSED – 21st JUNE 9AM, 10AM E 11 November 2024 22201-29 SHADOW DIAGRAMS PROPOSED – 21st JUNE 11AM, 12PM E 11 November 2024 22201-30 SHADOW DIAGRAMS PROPOSED – 21st JUNE 1PM, 2PM E 11 November 2024 22201-31 SHADOW DIAGRAMS PROPOSED – 21st JUNE 3PM E 11 November 2024 22201-32 3D SOLAR ANALYSIS E 11 November 2024 22201-33 3D SOLAR ANALYSIS E 11 November 2024 22201-34 3D SOLAR ANALYSIS E 11 November 2024 22201-35 3D SOLAR ANALYSIS E 11 November 2024 22201-36 3D SOLAR ANALYSIS – EQUINOX E 11 November 2024 22201-37 3D SOLAR ANALYSIS - EQUINOX E 11 November 2024 1. Landscape plans, prepared by Melissa Wilson Drawing No. Drawing Title Revision Date LS01 Landscape | Site Plan F 6 November 2024 LS01.1 Landscape | Landscape Calculations F 6 November 2024 LS02 Landscape | Ground Floor F 6 November 2024 LS03 Landscape | Plant Species F 6 November 2024 LS04 Landscape | Notes + Typical Detail F 6 November 2024 1. Stormwater plans, prepared by Capital Engineering Consultants Drawing No. Drawing Title Revision Date SW001 Stormwater Layout Plan Cover Sheet H 15 October 2024 SW010 Stormwater Layout Plan Ground Floor Plan, Notes & Details H 15 October 2024 SW011 Stormwater Layout Plan Site Catchment Plan H 15 October 2024 SW020 Stormwater Layout Plan First Floor Plan, Notes & Details H 15 October 2024 SW030 Stormwater Layout Plan Roof Plan Notes & Details H 15 October 2024 ER001 Stormwater Layout Plan Erosion & Sediment Control Plan, Notes & Details H 15 October 2024 1. Arboricultural impact assessment, root mapping, tree pruning specifications and tree management plan, prepared by Horticultural Management Services, revision 9 dated 30 October 2024. 2. BASIX certificates number 1403964S_02, 1403964S_02, 1403964S_02 and 1403964S_02 prepared by Noura Al Hazzouri, dated 11 November 2024. 1. The Court orders: 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Council's costs, thrown away as a result of the amendment of the application, of $2,500.00 within 28 days of these orders. 2. The appeal is upheld. 3. Development Application DA/2023/0730 for demolition of existing structures and construction of four semi-detached dwellings with Torrens title subdivision into four lots at 149 Unwins Bridge Road, Tempe, is determined by granting development consent, subject to the conditions in Annexure 'A'. E Washington Commissioner of the Court ********** Annexure A Amendments 29 November 2024 - Pursuant to UCPR r 36.17, slip rule, typographical errors in Annexure A are amended. 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: 29 November 2024