Ainsworth v Inner West City Council

[2022] NSWLEC 1416

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ainsworth v Inner West City Council [2022] NSWLEC 1416

Hearing dates:

Conciliation conference on 30 June and 1 July 2022

Date of orders:

04 August 2022

Decision date:

04 August 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Applicant's written request, pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013, seeking a variation to the development standards for site coverage is upheld.
(2) The Appeal is upheld.
(3) Development Application DA/2021/0841 for the demolition of the existing dwelling and construction of a new multi-level dwelling, carport to rear and associated works including tree removal at Lot 1 DP 543492 (being 115 Short Street, Birchgrove) is determined by the grant of Development Consent, subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – new dwelling – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 34, 34AA
Leichhardt Local Environmental Plan 2013, cll 4.3, 4.3A, 4.6, 5.10, 5.21, 6.1, 6.4
Draft Inner West Local Environmental Plan 2020
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021

Category:

Principal judgment

Parties:

Belinda Ainsworth (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
R White (Counsel) (Applicant)
T March (Counsel) (Respondent)

Solicitors:
Piper Alderman Lawyers (Applicant)
Maddocks (Respondent)

File Number(s):

2022/83369

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Ms Ainsworth (Applicant) against the refusal of Development Application No. DA/2021/0841 by the Inner West Local Planning Panel (IWLPP) on 8 March 2022. The DA was lodged with Inner West Council on 13 September 2021, the Council being the Respondent in these proceedings.

2. The development application seeks consent for the demolition of an existing dwelling and the construction of a new multi-level dwelling, carport to rear and associated works, including tree removal. The development is to take place at 115 Short Street, Birchgrove NSW 2041, otherwise known as Lot 1 DP543492 (Site).

3. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 30 June and 1 July 2022.

4. As part of the Court process, the parties undertook a site view. The parties heard oral submissions from neighbours regarding the proposed development. Whilst several issues were raised, privacy, stormwater and solar access impacts were the key aspects of the oral and written submissions. I note that the amendments made to the application as part of the proceedings reflect improved outcomes on these issues.

5. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant development consent to the development application subject to conditions.

6. As part of the agreement, the applicant provided the Respondent with amended plans which form part of that agreement. The parties agree that these Amended Plans are acceptable. The application, including the Amended Plans, have been lodged on the NSW planning portal.

7. Pursuant to s 34(3) of the LEC Act (which applies by virtue of s 34AA(2) of the LEC Act), I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

9. 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Leichhardt Local Environmental Plan 2013 (LLEP), the subject site is zoned R1 General Residential wherein the use is permissible. In determining the development application, I have had regard to the objectives of the zone.

2. Clause 4.3 of the LLEP requires the height of any building on the land to not exceed the maximum height shown on the Height of Building Map. The land is not identified on any Height of Building Map under the LLEP. I am therefore satisfied that cl 4.3 of the LLEP has been addressed.

3. The land is affected by a development standard, for landscaped area of 15% and a site coverage requirement of 60%, pursuant to cl 4.3A of the LLEP. The proposed development complies with the landscaped area development standard but exceeds the site coverage by 3.8m² and therefore requires a written request to vary the development standard.

4. The applicant submitted a written request to vary the standard for site coverage set out in cl 4.3A. The written request, prepared by SJB Planning on 29 June 2022, demonstrated consistency with zone objectives and outlined the reasons why strict adherence to the development standard was unreasonable and unnecessary and that the variation was in the public interest. I am satisfied that the written request adequately addresses the matters set out in subcll 4.6(3)(a) and (b) thereby satisfying subcl 4.6(4)(a)(i) of the LLEP, and that the variation to the development standard is in the public interest. In this regard, I accept that the proposed site coverage is in the public interest as it is consistent and compatible with the objectives of the site coverage development standard and the R1 zone in which the development is proposed to be carried out, thereby satisfying cl 4.6(4)(a)(ii).

5. Clause 5.10 of the LLEP requires the consent authority to consider the effect of the proposed development on the relevant heritage conservation area. The Land is located within the Town of Waterview Heritage Conservation Area. I am satisfied that the heritage experts have given due consideration to the matter and concur with their agreement that the proposal is compatible with the established character of the Town Waterview Heritage Conservation Area.

6. The requirements in cl 5.21 of LLEP concerning flood planning are satisfied considering that the land is not within the flood planning area, however, appropriate conditions of development consent have been imposed to ensure that the stormwater plans are updated consistent with the Amended Plans.

7. Clause 6.1 of the LLEP requires development consent for the carrying out of works on land which is shown of the Acid Sulfate Soils Map. The land is identified as ‘Class 5’ Acid Sulfate Soils and the site is within 500 m of land containing 2 Acid Sulfate Soils. The proposed works will not lower the water table below 1 m AHD and no works are proposed below 5 m AHD. I am satisfied that due consideration has been given to the requirements of cl 6.1 and these requirements have been met.

8. Clause 6.4 of the LLEP requires a consent authority to be satisfied that various matters relating to stormwater management have been taken into consideration when determining whether to grant development consent for any application on residential land. A stormwater management proposal has been provided to address the matters in this clause. Appropriate conditions of development consent have been included in Annexure A to ensure that the stormwater civil design minimises the impacts of urban stormwater. I am therefore satisfied that the requirements of this clause have been met.

9. The draft Inner West Local Environmental Plan 2020 (IWLEP 2020) was placed on exhibition on 16 March 2020 and is therefore a relevant matter for consideration pursuant to s 4.15(1)(a)(ii) of the EPA Act. Additional objectives are included in the revised cl 4.4 Floor Space Ratio Control under the draft IWLEP 2020, and to the extent to which the additional objectives apply to the proposal, the Amended Plans now provide compliant FSR. I am therefore satisfied that the relevant provisions have been considered.

10. The proposal was appropriately notified by the Respondent pursuant to the EPA Act and its Community Engagement Framework. At the end of the notification period, the Respondent received submissions which have been considered as part of the development assessment process.

11. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

12. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. The proposed works do not include any change to the use of land that would result in concern with respect to contamination as the Site has a long history of residential use.

13. Consideration has been given to State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). I am satisfied that the Biodiversity and Conservation SEPP requirements have been met.

10. 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’ agreement.

11. 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.

Orders

12. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant's written request, pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013, seeking a variation to the development standards for site coverage, is upheld.

2. The appeal is upheld.

3. Development Application DA/2021/0841 for the demolition of the existing dwelling and construction of a new multi-level dwelling, carport to rear and associated works including tree removal at Lot 1 DP 543492 (being 115 Short Street, Birchgrove) is determined by the grant of Development Consent, subject to the conditions set out in Annexure ‘A’.

……………………….

S Harding

Acting Commissioner of the Court

Annexure A.pdf

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Decision last updated: 04 August 2022