Allen v Inner West Council

[2021] NSWLEC 1431

Land and Environment Court

New South Wales

Medium Neutral Citation:

Allen v Inner West Council [2021] NSWLEC 1431

Hearing dates:

Conciliation conference on 22 July 2021

Date of orders:

29 July 2021

Decision date:

29 July 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The development application DA/2019/00213 to demolish part of the premises and carry out ground and first floor alterations and additions to a dwelling house at Lot 1 in DP 931224, known as 49 Roberts Street Camperdown, is approved subject to the conditions at Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Marrickville Local Environmental Plan 2011, cll 2.3, 2.7, 4.3, 4.4, 5.10, 6.2, 6.5

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Jamie Allen (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
C Rose (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2021/33671

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Inner West Council's refusal of development application DA/2019/00213 (DA).

2. The DA seeks to demolish part of the premises and carry out ground and first floor alterations and additions, and associated works, to a dwelling house at Lot 1 in DP 931224, known as 49 Roberts Street Camperdown.

3. On 22 July 2021, the Court arranged a mandatory conciliation conference between the parties, under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) at which I presided. At the conciliation conference, 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 was acceptable to them. The decision agreed upon would uphold the appeal and have the Court exercise the function under s 4.16(1) of the EPA Act to grant consent to the development application in accordance with agreed conditions.

4. The parties submit 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), and provided a jurisdictional statement to that effect. I agree with this submission of the parties, and address the jurisdictional tests in regard to the application as indicated below.

5. In regard to State Environmental Planning Policy No. 55 – Remediation of Land, and in particular cl 7(1), I note and accept the advice that the land has been used for residential purposes for an extended timeframe and is not considered to be at risk of contamination. The requirements are met.

6. In regard to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, an updated BASIX Certificate has been provided.

7. In regard to Marrickville Local Environmental Plan 2011 (MLEP):

• The site falls within the R2 Low Density zone under MLEP. The proposal is permissible within the zone under cl 2.3 and under the provisions of cl  2.7 with respect to the partial demolition. I have had regard to the zone objectives in accordance with the requirements of cl 2.3.

• The proposal complies with the development standards at cl 4.3 (with respect to height of buildings, and cl 4.4 (with respect to floor space ratio).

• The site is located within the Hopetoun-Roberts-Federation Streets Heritage Conservation Area (HCA) under Schedule 5 to MLEP. No heritage item is located on the site. Under cl 5.10(4) a consent authority must consider the effect of the proposed development on the heritage significance of the HCA. The heritage experts have agreed on certain changes to the front and side presentation and colour scheme (accommodated through consent conditions) which are agreed to satisfy heritage concerns. The requirement to consider the effect on the heritage significance of the HCA has been satisfied.

• The Proposal includes certain works meeting the definition of “earthworks” under MLEP (including excavation for the lower ground floor level). Pursuant to cl 6.2(3) of MLEP, prior to the grant of any development consent for earthworks, I must consider the matters identified under (a) to (h) of the subclause. The Applicant has provided a structural design statement prepared by United Consulting Engineers and Basement Piling and Drainage Plan. I note the parties agreement that, mindful of these documents and proposed consent conditions, they are satisfied with respect to the listed matters (a) to (h) of the clause. The requirements of cl 6.2(3) have been satisfied.

• Clause 6.5(3) concerns certain matters relating to aircraft noise. I note that agreed conditions have been imposed and the parties are satisfied that the development will meet the indoor design sound levels. Based on this advice and in consideration of the relevant conditions, the requirements of cl 6.5(3) have been satisfied.

8. Under s 4.15(1)(d) of the EPA Act, I must take into consideration lay submissions. I note that an immediate neighbour to the south raised concerns in such a lay submission. I queried the parties with respect to each of the concerns, noting the response to each, some of which resulted in changes to the proposal. The requirements of s 4.15(1)(d) of the EPA Act are satisfied.

9. Based on the material outlined above, 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. In turn I am required to dispose of the proceedings in accordance with the parties’ decision. I note that I have had no direct regard to the merits of the application in coming to this position. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders which follow do so.

10. The Court orders that:

1. The appeal is upheld.

2. The development application DA/2019/00213 to demolish part of the premises and carry out ground and first floor alterations and additions to a dwelling house at Lot 1 in DP 931224, known as 49 Roberts Street Camperdown, is approved subject to the conditions at Annexure A.

……………………………

P Walsh

Commissioner of the Court

Annexure A (240824, pdf)

Architectural Plans (6441747, pdf)

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Decision last updated: 29 July 2021