Land and Environment Court New South Wales Medium Neutral Citation: Burgess v Inner West Council [2020] NSWLEC 1095 Hearing dates: Conciliation conference on 10-11 February 2020 Date of orders: 10 March 2020 Decision date: 10 March 2020 Jurisdiction: Class 1 Before: Dickson C Decision: See orders at [7] below Catchwords: DEVELOPMENT APPLICATION – new residential dwelling – 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 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Stuart Burgess (Applicant) Inner West Council (Respondent) Representation: Counsel: A Stafford (Applicant) L Nurpuri (Respondent) Solicitors: Beatty Legal (Applicant) Inner West Council (Respondent) File Number(s): 2019/217100 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of its development application D/2019/95. The development application seeks consent for demolition of existing structures, construction of a new dwelling house and associated works including tree removal and landscape works. The development is proposed at 40 Rose Street, Birchgrove. 2. In accordance with the Court's usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 10-11 February 2020. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application. 3. Following the conciliation, 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 would be acceptable to them. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. Landowners consent was provided by the owner of the land at the time of the lodgement of the Development Application. 2. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land, I accept the position of the parties that the site has a long history of residential use and does not require further specific investigation. I note that no change of use is proposed. 3. The site is subject to the provisions of the Leichhardt Local Environmental Plan 2013 (LEP 2013) and is zoned R1 General Residential. Dwelling houses are a permissible use with consent in the zone. The development is not inconsistent with the zone objectives. 4. Demolition requires consent (cl 2.7 of LEP 2013) and is sought by the application. 5. The development standards for landscaped area and floor space ratio in LEP 2013 are not exceeded by the proposed development. 6. The proposed development is situated in a heritage conservation area. Pursuant to cl 5.10(4) of LEP 2013, I accept the parties agreement that the demolition of the existing dwelling is acceptable and that the new dwelling will have no detrimental impact on the Birchgrove Ballast Point Heritage Conservation Area. 7. The development satisfies the requirements of cl 6.1: Acid sulfate soils, cl 6.2: Earthworks and cl 6.4: Stormwater in LEP 2013. 8. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 982590S in compliance with the instrument. 9. The original application was notified in accordance with the relevant development control plan and the submissions have been considered. 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, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, 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 final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. Leave is granted to the Applicant to rely on: 1. Driveway Detail, including approved splay, garage door opening width, driveway area and swept path analysis, prepared by McClaren Traffic Engineering, dated 11 February 2020 and filed in Court on 11 February 2020; and 2. the following amended plans prepared by Benn and Penna Architecture: 1. Cover Sheet, revision E; 2. 1809-P-00 Site Plan, revision E, dated 11 February 2020; 3. 1809-P-01 Basement Floor Plan, revision D, dated 11 February 2020; 4. 1809-P-02 Ground Floor Plan, revision D, dated 24 January 2020; 5. 1809-P-03 First Floor Plan, revision D, dated 24 January 2020; 6. 1809-P-04 Roof Plan, revision E, dated 11 February 2020; 7. 1809-P-05 North Elevation, revision D, dated 11 February 2020; 8. 1809-P-06 South Elevation, revision E, dated 11 February 2020 9. 1809-P-07 East Elevation, revision E, dated 11 February 2020; 10. 1809-P-08 West Elevation, revision D, dated 11 February 2020; 11. 1809-P-09 Long Section (B), revision E, dated 11 February 2020; 12. 1809-P-10 Long Section (C), revision D, dated 11 February 2020; 13. 1809-P-11 Driveway sections, revision D, dated 11 February 2020; 14. 1809-X-01 Calculation Diagrams, revision D, dated 24 January 2020; and 15. Materials and finishes sample board, revision E, dated 11 February 2020. 1. The appeal is upheld. 2. Development application No. D/2019/95 for the demolition of the existing house and construction of a new two storey house with associated works and landscaping at 40 Rose Street, Birchgrove is approved subject to the conditions in Annexure A. …………………… D M Dickson Commissioner of the Court Annexure A (73.5 KB) Driveway Detail (320 KB) Plans Part 1 (2.63 MB) Plans Part 2 (442 KB) ********** 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: 11 March 2020