Micrah Projects Pty Ltd v Inner West Council [2017] NSWLEC 1187

Land and Environment Court New South Wales

Medium Neutral Citation: Micrah Projects Pty Ltd v Inner West Council [2017] NSWLEC 1187 Hearing dates: 7-8 March 2017 Date of orders: 09 May 2017 Decision date: 13 April 2017 Jurisdiction: Class 1 Before: Chilcott C Decision: (1) The appeal is upheld. (2) The application to modify the conditions of consent for development application no. DARV/2016/8 is approved, subject to the amended conditions provided at Annexure 'A' and the amended hydraulic plans provided at Annexure 'B'. (3) The exhibits are returned with the exception of Exhibits 1 and A. Catchwords: APPEAL: Development application - tree structural root zone impacts; location of on-site detention tank. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Micrah Projects Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Counsel: Mr Pierre Saab (Applicant) Mr Mark Bonanno (Respondent)

Solicitors: Macquarie Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2016/352174 Publication restriction: Nil

Judgment 1. Commissioner: Micrah Projects Pty has appealed the deemed refusal of an application to modify the development consent M/20/2016/178, for the construction of a new dwelling and associated works, including new car space at the rear of the property and removal of a tree, at 250 Annandale St, Annandale (the Subject Site). 2. The appeal was brought under section 97AA of the Environmental Planning and Assessment Act 1979, and was subject to mandatory conciliation under on 7 March 2017 under s34AA of the Land and Environment Court Act 1979 (LEC Act). 3. A site inspection was undertaken at the commencement of the conciliation conference. During that inspection, an oral submission was received from the neighbour in an adjoining property at 248 Annandale St, Annandale, Ms Michele Passant, who confirmed details of a written submission lodged by her in relation to the proposed development. 4. Ms Passant noted that her concerns related to the potential drainage and other water related impacts on her property, as well as potential excavation related impacts. 5. During the conciliation conference, and in response to contentions identified by the Respondent, the Applicant provided amended plans for the development. 6. Upon review of the amended plans the parties agreed that most contentions between them had been resolved. This included contentions relating to: 1. The design of the proposed development and potential impacts on streetscape; 2. The respondent's request to delete a front sunken courtyard; 3. An exceedance of the applicable floor space ratio; 4. The design and materials of a proposed front ground level balustrade; 5. The use of polymer permanent formwork; 6. The design of windows within the northern elevation of the proposed development; 7. Landscape plan details, including plantings; 8. Potential drainage impacts. 1. However, one contention remained unresolved at the conclusion of the conciliation conference. This concerned the potential impact of the proposed development on a Melaleuca bracteata tree located at the rear of the adjoining property (248 Annandale Rd, Annandale), and close to the southern boundary of the Subject Site, along with that tree's associated root system. 2. This contention centred on the potential for a proposed alfresco dining area and adjacent living area to impact on the Melaleuca bracteata tree and its root system. Related to this is the proposed location of an on-site detention (OSD) tank which is influenced by the design of the proposed alfresco area and living area. 3. As the Parties were unable to reach agreement on this contention, the conciliation conference was terminated pursuant to s34AA(2)(b) of the LEC Act. 4. The proceedings were then dealt with forthwith pursuant to s34AA(2)(b)(i), and on the basis of what occurred at the conciliation conference pursuant to s34AA(2)(b)(ii), of the LEC Act. 5. As all issues apart from the potential impact of the proposed development on the root system of the Melaleuca bracteata tree on the adjoining property had been agreed, the hearing was confined to the tree issue.