Land and Environment Court New South Wales Medium Neutral Citation: Liley v Inner West Council [2020] NSWLEC 1144 Hearing dates: Conciliation conference 25 February 2020 Date of orders: 26 March 2020 Decision date: 26 March 2020 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [10] Catchwords: DEVELOPMENT APPLICATION – alterations and additions – heritage conservation area – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Texts Cited: Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: Alex Jane Liley (Applicant) Inner West Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicant) A Garsia (Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2019/310185 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 ('EPA Act'), against the refusal by the Inner West Council (the Respondent) of Development Application No. D/2019/238 seeking consent for ground floor and first floor alterations and additions to existing dwelling at 173 Beattie Street, Balmain (the site). 2. In accordance with its usual practice, the Court arranged a mandatory conciliation conference between the parties under s 34AA of the Land Environment Court Act 1979 ('LEC Act') on 25 February 2020, which commenced with an onsite view under s 34(1) of the LEC Act, and at which I presided. There were no resident submissions. 3. 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 involved the Court upholding the appeal and granting conditional development consent to the development application. 4. However as the agreement required amendments to the plans the subject of the appeal, I granted an adjournment to permit those amendments to be made. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 10 March 2020. 5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites contained in the provisions of the Leichhardt Local Environmental Plan 2013 (LLEP). 1. The site is located within the R1 General Residential zone pursuant to the LLEP, in which dwelling houses are permitted with consent, and wherein the objectives of the zone are in the following terms: 1 Objectives of zone • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To improve opportunities to work from home. • To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas. • To provide landscaped areas for the use and enjoyment of existing and future residents. • To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area. • To protect and enhance the amenity of existing and future residents and the neighbourhood. 1. While the site is not identified in Schedule 5 of the LLEP as a heritage item, it is within The Valley Heritage Conservation Area and so enlivens the provisions relating to heritage conservation at cl 5.10 of the LLEP. Consent is required for alterations to the exterior of a building within a heritage conservation area (subcl 5.10(2)), and the consent authority, or the Court exercising the powers and functions of Council on appeal must consider the effect of the proposed development on the heritage significance before granting consent under subcl 5.10(4). 2. On the basis of the agreed position of the heritage experts that the proposal retains the integrity of the original building; and the character of the terrace groups comprising No's 171 – 175 Beattie Street, I am satisfied that no adverse effect on the Heritage Conservation Area will result from the development the subject of the development application. 3. I am also satisfied that the provisions of cl 6.4 of the LLEP are achieved by the provision of onsite retention (OSR) and matters contained in condition 20 of the conditions of consent at Annexure 'B'. 4. The development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 to the Environmental Planning and Assessment Regulation 2000. 1. As the jurisdictional prerequisites to the grant of consent have been addressed 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 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. 3. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 4. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is granted leave to amend Development Application No.D/2019/238 and to rely upon the following amended plans and documents, copies of which are included at Annexure 'A': Plan Reference Prepared by Date Drawing No. 2016/17DA/1/D - Cover Oikos Architects 27 February 2020 Drawing No. 2016/17DA/2/D – Site & Roof Plan Oikos Architects 27 February 2020 Drawing No. 2016/17DA/3/D – Ground Floor Plan Oikos Architects 27 February 2020 Drawing No. 2016/17DA/4/D – First Floor Plan Oikos Architects 27 February 2020 Drawing No. 2016/17DA/5/D – Sections A & B Oikos Architects 27 February 2020 Drawing No. 2016/17DA/6/E – Elevations-SE, NW & NE Oikos Architects 9 March 2020 Drawing No. 2016/17DA/7/D – Elevations-SW & Section C Oikos Architects 27 February 2020 Plan Reference Prepare by Date BASIX Certificate No. A349788_02 Oikos Architects 3 March 2020 1. The appeal is upheld. 2. Development Application No. D/2019/238 (as amended) for alterations and additions to the existing dwelling on land identified as Lot 2 in Deposited Plan 447113 and known as 173 Beattie Street, Balmain, be approved subject to the conditions included at Annexure 'B'. ………………………. Tim Horton Commissioner of the Court Annexure A (10.8 MB) Annexure B (113 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: 30 March 2020