Land and Environment Court New South Wales Medium Neutral Citation: Howard-Jones v Inner West Council [2019] NSWLEC 1119 Hearing dates: Conciliation conference on 6 March 2019 Date of orders: 26 March 2019 Decision date: 26 March 2019 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [17] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: David Howard-Jones (First Applicant) Annaleise Howard-Jones (Second Applicant) Inner West Council (Respondent) Representation: Solicitors: A Johnson, Swaab (Applicants) M Bonanno, Inner West Council (Respondent) File Number(s): 2018/252345 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal by Inner West Council (hereafter the Council) of Modification Application (MA) M/2018/75, which seeks to amend an existing Development Application (DA) D/2015/496 by deletion of Condition 1(a) attached to the conditions of consent, for Lot A in DP 364468, also known as 5 Phoebe Street, Balmain. 2. Condition 1(a) as attached to the DA approval, is a deferred commencement condition that requires an easement over a downstream property to allow gravity flow of stormwater drainage directly into the Parramatta River. 3. The amended plans for this MA seek to enable stormwater drainage from the site by gravity flow directly and predominantly into the existing Council stormwater drainage in Phoebe Street, with minor flow through infiltration dispersion towards the Parramatta River. 4. This Class 1 appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). 5. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 6 March 2019. I presided over the conciliation conference held at the Court. There were no objections heard at this conciliation. 6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to MA M/2018/75 with conditions. 7. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.55(1A) of the EPA Act 1979. The requirements for satisfaction of s 4.55(1A) by the Court to grant consent are as follows: (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. 1. I am satisfied that the proposed modifications to stormwater management as designed and described by the parties' experts can function in a manner that will minimise environmental impact. Thereby, the MA complies with s 4.55(1A)(a) of the EPA Act 1979. 2. I am also satisfied that the proposed modifications, as shown on the stormwater and architectural plans, do not substantially change the approved development either in function or appearance, and remains substantially the same as originally granted. Therefore, the requirements of s 4.55(1A)(b) are satisfied by the MA. 3. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.55(1A)(c) and (d) of the EPA Act 1979, as consistency with the: Leichhardt Local Environmental Plan 2013 (LLEP 2013), specifically R1 General Residential Zone objectives, cl 6.4 stormwater management and cl 5.10 heritage conservation; and Leichhardt Development Control Plan 2013 (LDCP 2013), specifically relating to stormwater. 4. The parties raised no issue of contention, and I am satisfied that there are none, that relate to consistency with the heritage conservation area, as required in cl 5.10 of the LLEP 2013. 5. The site is located within an R1 General Residential Zone, pursuant to LLEP 2013. The proposed modifications are to an approved development which is permissible in the zone. I am satisfied that the MA does not make the approved development inconsistent with the zone objectives. 6. Based on what was explained by the parties, I am satisfied that the requirements of cl 6.4(3) of the LLEP 2013 are achieved as follows: 1. The disposal system directs the majority of stormwater to the street and only a minor portion to the infiltration system, consistent with the capacity of the land. 2. Stormwater from the roof will be directed to an onsite detention system to manage flow discharge offsite and mitigate any potential flooding issues. 3. Discharge from the pool is discharged into the sewer system and sheet flow stormwater to the infiltration system to protect downstream water quality. 1. I am satisfied that the quantity and quality of water discharged from the site is managed in such a way to mitigate any potential adverse impacts to adjoining properties. The system proposed is designed as gravity flow, consistent with the objectives and requirements of the LDCP 2013, specifically sections E1.2.2 (C1 and C4). 2. 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 1979. 3. 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 1979 to dispose of the proceedings in accordance with the parties' decision. 4. The Court orders: 1. The Applicant is granted leave to rely on the following amended plans and material: Reference No. and/Issue Drawing Title Prepared by Date of Plan Drawing No. SWC7-1, Rev B Concept 7 General Notes E2 Civil and Structural Design Pty Ltd 20 February 2019 Drawing No. SWC7-2, Rev D Concept 7 Roof Drainage Plan 1 March 2019 Drawing No. SWC7-3, Rev D Concept 7 Drainage Plan 1 March 2019 Drawing No. SWC7-4, Rev C Concept 7 Details – Sheet 1 21 February 2019 Drawing No. SWC7-5, Rev A Concept 7 Details – Sheet 2 20 February 2019 Drawing No. SWC7-6, Rev 0 Concept 7 Details – Sheet 3 17 December 2018 Drawing No. SWC7-7, Rev C Concept 7 Details – Sheet 4 1 March 2019 Drawing No. DA00, Rev H Cover Page TW Architects 4 March 2019 Drawing No. DA01, Rev H BASIX Drawing No. DA02, Rev H Site Analysis Plan Drawing No. DA03, Rev H Ground Floor Demolition Plan Drawing No. DA04, Rev H First Floor Demolition Plan Drawing No. DA05, Rev H Proposed Site and Roof Plan Drawing No. DA06, Rev H Proposed Ground Floor Drawing No. DA07, Rev H Proposed First Floor Plan Drawing No. DA08, Rev H Elevations Drawing No. DA09, Rev H Elevations Drawing No. DA010, Rev H Sections Drawing No. DA11, Rev H Sections Drawing No. DA12, Rev H Sections Drawing No. DA13, Rev H Sections Drawing No. DA14, Rev H Concept Landscape Plan Drawing No. DA15, Rev H Shadow Diagram – 9AM Drawing No. DA16, Rev H Shadow Diagram – 12 Noon Drawing No. DA17, Rev H Shadow Diagram – 3pm Drawing No. DA18, Rev H Elevational Shadow Diagrams Drawing No. DA19, Rev H Elevational Shadow Diagrams Drawing No. DA20, Rev H Elevational Shadow Diagrams Drawing No. DA21, Rev H Elevational Shadow Diagrams Report No. NE465 Geotechnical Assessment Report for Proposed Stormwater Drainage System Geotesta 21 February 2019 N/A Statement of Evidence Heritage Brian McDonald 5 March 2019 1. The Appeal is upheld. 2. Modification Application M/2018/75 to modify Development Consent No. D/2015/496 is determined by approval in accordance with the modifications set out in Annexure "A". 3. As a consequence of Order (3), Development Consent No. D/2015/496 is now subject to the consolidated, modified conditions of development consent set out in Annexure "B". ………………………. S Bish Commissioner of the Court Annexure A Annexure B Plans 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: 27 March 2019