Antonella Da Silva and Development Designs Pty Ltd v Inner West Council

[2024] NSWLEC 1434

Land and Environment Court

New South Wales

Medium Neutral Citation:

Antonella Da Silva and Development Designs Pty Ltd v Inner West Council [2024] NSWLEC 1434

Hearing dates:

Conciliation conference 18 July 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The written request made pursuant to clause 4.6 of the Inner West Local Environment Plan 2022 in relation to a variation to the Floor Space Ratio (FSR) standard (of clause 4.4 of the Inner West Local Environment Plan 2022), prepared by GSA Planning and dated 18 July 2024, is upheld.

(2) The appeal is upheld.

(3) Development Application 2023/0080, as amended, for the proposed alterations and additions including new upper level with roof top terrace and roof top pool at Lot 2 in Strata Plan 19435 also known as 5-7 Hosking Street, Balmain East in the State of New South Wales is determined by the grant of consent subject to conditions contained in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to dwelling house in R1 General Residential zone – heritage conservation area – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

Inner West Local Environmental Plan 2022, cll 4.4, 4.6, 5.10, 6.1, 6.2, 6.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Ch 6, ss 6.6, 6.7, 6.8, 6.9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Texts Cited:

Inner West Community Engagement Framework

Category:

Principal judgment

Parties:

Antonella Da Silva (First Applicant)
Development Design Pty Ltd (ACN 107 176 867) (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Wright SC (Applicant)
D Robertson (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Hall & Wilcox (Respondent)

File Number(s):

2024/18001

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Alterations and additions are proposed to an existing dwelling house, that is part of a two-storey semi-detached, dual occupancy development at 5-7 Hosking Street, Balmain East.

2. Specifically, Development Application DA/2023/0080 (DA), as lodged on 15 February 2023, seeks consent for alterations and additions that includes changes to all levels of the existing dwelling, including a roof level pavilion, terrace, sauna, lift overrun, plunge pool and planter to No 5 Hosking Street.

3. The DA was notified in accordance with the Inner West Community Engagement Framework between 1 March – 15 March 2023, and was re-notified between 15 March – 29 March 2023.

4. The DA was refused by the Inner West Planning Panel, on behalf of Inner West Council (the Respondent) on 14 November 2023, and the Applicants, Ms Antonella Da Silva and Development Design Pty Ltd, filed an appeal in Class 1 of the Court’s jurisdiction under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) on 16 January 2024.

5. The appeal was listed for mandatory conciliation on 18 July 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

6. The proceedings commenced with an onsite view where, in the company of the legal representatives and experts, the Court heard an oral submission from the resident at No 3 Hosking Street that supplemented written submissions.

7. The Court also heard an oral submission from the owner of No 19 Johnston Street, a property located to the rear of the subject site, objecting to the proposal, and likewise reiterating issues contained in a written submission dated 29 March 2023. The owner also sought leave for an expert in urban design, Mr Geoff Bonus, to speak notwithstanding that Mr Bonus was not listed to do so.

8. Mr Bonus, Dr Phillip Pollard, heritage expert and Ms Jillian Sneyd, planning expert, were all heard in support of the submission by the owner of No 19 Johnston Street. The Court was also taken to the property at No 19 Johnston Street and observed the subject site from numerous locations.

9. After the onsite view, the conciliation conference convened at Court, during which the parties agreed on certain amendments to the plans before the Court, and the terms of agreed conditions of consent. On this basis, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties.

10. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 19 July 2024, and amended plans and other documents were filed on the same date.

11. 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 s34 agreement.

12. 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. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [45].

13. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

14. The site is located within the R1 General Residential zone, according to the Inner West Local Environmental Plan 2022 (IWLEP) in which dwelling house development is permitted with consent, where consistent with the objectives for development in the R1 zone, that are:

•  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 provide residential development that maintains the character of built and natural features in the surrounding area.

15. There is no height standard appliable to the site with which the development should comply. However, while not a contention in these proceedings, objector submissions identify an exceedance of the floor space ratio (FSR) standard at cl 4.4 of the IWLEP.

16. The Applicant relies up on a written request, prepared by Mr George Karavanas of GSA Planning dated July 2024 to seek a variation in the FSR standard (the FSR request).

17. The FSR request identifies, at p 3, that the existing gross floor area (GFA) of the dwellings at Nos 5-7 Hosking Street may be expressed with a FSR of 0.88:1. When the additional GFA proposed to No 5 Hosking Street is factored, a FSR of 1.095:1 results, being an exceedance of 21.7% above the FSR standard applicable to the site.

18. Figure 1 of the FSR request identifies the extent of existing GFA, and the additional GFA proposed on the basement level, ground floor and first floor.

19. The FSR request asserts that compliance with the FSR standard is unreasonable or unnecessary because the objectives of the FSR standard are achieved notwithstanding the non-compliance with the standard at cl 4.4(1) of the IWLEP.

20. The objectives at cl 4.4 of the IWLEP are as follows:

(a)  to establish a maximum floor space ratio to enable appropriate development density,

(b)  to ensure development density reflects its locality,

(c)  to provide an appropriate transition between development of different densities,

(d)  to minimise adverse impacts on local amenity,

(e)  to increase the tree canopy and to protect the use and enjoyment of private properties and the public domain.

21. The FSR request asserts the objectives are achieved for reasons summarised as follows:

1. The development on the site will maintain the site’s existing use as an attached dual occupancy and the same number of bedrooms within a similar building envelope. As such, the proposal retains, and so enables appropriate density.

2. The immediate locality is characterised by residential development ranging from attached single dwellings, semi-detached dwellings and residential flat buildings. There is no change to the development density proposed.

3. The site is not located near a change in FSR controls to which a transition may be directed. However, the height and scale of the proposal is appropriate with the predominant height and scale of development in Hosking Street.

4. Adverse impacts on the local amenity are minimised in the following ways:

1. In terms of privacy, window openings to the east are minimised to No 3 Hosking Street by a planter that obstructs any sightline, and where the neighbouring external open space does not serve living areas nor serve as principal private open space.

2. In terms of solar access, the amended shadow diagrams depict overshadowing that is primarily to rooftops and some additional impact on private open space to the rear of properties on the southern side of Hosking Street that is assessed as minor. That said, the additional GFA does not unreasonably affect solar access to habitable rooms or private open space of neighbouring or nearby dwellings.

3. While the additional GFA is located on the ground and first floor levels only, those properties in the area that enjoy views to the harbour, and of the land-water interface, will retain those views.

5. The allocation of GFA on the site provides sufficient space to accommodate an additional tree, which I note is dealt with as a condition of consent, as is the protection of the weeping bottlebrush on adjoining land at No 3 Hosking Street, and rooftop planters of greater than 600mm in depth which serve to increase the area of landscape so as to protect the enjoyment of private properties and the public domain.

22. Next the FSR request advances three environmental planning grounds it asserts are sufficient to justify the contravening of the FSR standard, as follows:

1. The exceedance will not result in a material impact on the streetscape or neighbouring properties because the overall external envelope will remain largely consistent with the scale of development evident in surrounding development. To the extent the additional GFA on the ground and first floor extends toward Hosking Street, it is not inconsistent with No 7 Hosking Street, while the extension of the bathroom to the rear of the site will not be visible from the public domain. As such, the FSR exceedance is not out of character with the bulk and scale of surrounding properties, or the desired future character of the area.

2. The additional GFA is substantially located within the existing building envelope, other than for additions to the side setback to the east, at ground floor and first floor that are setback from the street, which adjoin a landscape buffer and maintain amenity such as solar access, views and privacy.

3. The exceedance does not result in unacceptable environmental impacts such as solar access, views and privacy, for reasons identical to those at [21(4)].

23. Finally, the FSR request asserts the proposal is consistent with the objectives for development in the R1 zone, as it maintains the sites existing use as a dwelling, with upgrade that likewise maintains the contribution of the dwelling to the variety of housing types and densities, while maintaining the character, style, orientation and pattern of surrounding development, including both built and natural features.

24. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the IWLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the FSR standard and the objectives for development in the R1 Zone.

25. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for state or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the IWLEP.

26. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the FSR standard under cl 4.4 is justified.

27. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the FSR development standard and the objectives for development within the R1 zone.

28. In forming this opinion of satisfaction, I accept that the proposed development will remain largely consistent with the scale of development on the northern side of Hosking Street, notwithstanding the exceedance of the FSR standard, and that the exceedance reduces the overall height of the building in terms agreed by the heritage experts.

29. I have also considered the agreed conditions of consent that increase tree canopy by requiring the addition of a tree in the north western corner of the site, and the protection and proper pruning of the weeping bottlebrush on the land of No 3 Hosking Street. Furthermore, the amended architectural plansshow the extension of the privacy screen proposed to the eastern boundary shared with No 3 Hosking Street to a length of 3400mm.

30. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the IWLEP and I find no grounds on which the Court should not uphold the written request.

31. The site is located within the Balmain East Heritage Conservation Area (the Conservation Area), and adjoins Penbroke Villa that is identified as an item of local heritage significance in Sch 5 of the IWLEP. The heritage experts agree that the amended plans and other documents ensure the protection of the elements of the existing building at No 5 Hosking Street that contribute positively to the Conservation Area, and that the DA as amended, by the removal of the existing roof form, does not adversely impact the heritage significance of Penbroke Villa. I have considered the effect of the proposal on the Conservation Area and on the heritage item known as ‘Penbroke Villa’, in accordance with cl 5.10 of the IWLEP. On the basis of the agreement of the experts, and the removal of that part of the roof form on the subject site that obstructs a sightline from Penbroke Villa to a view it once enjoyed, I conclude no detriment results.

32. The site is located within an area identified on the relevant map at cl 6.1(2) of the IWLEP as Class 5 Acid Sulfate Soils, however as the alterations and additions do not propose works within 500m of another class, or classes of such soil, nor proposes excavation below 5m Australian Height Datum, and is unlikely to require the disturbance of 1 tonne of soil, I conclude that an Acid Sulfate Soils management plan is not necessary.

33. I have also considered the limited extent of earthworks proposed on the site in accordance with cl 6.2 of the IWLEP, and conclude there is unlikely to be any detrimental impact on the drainage patterns in the locality, or on the future development of the land, the amenity of adjoining properties or any other aspects of a kind identified at subcl (3).

34. On the basis of the Stormwater Plans prepared by Acroyali Engineers, and the extent of water-permeable surfaces evident on the land, and at the rooftop and other planter beds, I am satisfied that the development is designed to maximum such surfaces. I note a rainwater tank with a first-flush system is proposed. As such, I am satisfied the development proposed on-site stormwater retention. On the basis of the results of ‘MUSIC’ modelling undertaken in support of the Stormwater Plans, I am satisfied that the stormwater runoff is reduced from the existing runoff. Relatedly, the results of the MUSIC modelling also satisfy me that a reduction in pollutants and suspended solids contained within stormwater runoff are likewise reduced from the levels that exist today. Accordingly, I conclude Stormwater management is adequately addressed, in terms set out in cl 6.3 of the IWLEP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

35. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site. The development application is accompanied by an arboricultural report prepared by L&Co Consultancy dated 17 January 2023 that assesses two trees that may be impacted by the proposed development. I note conditions of consent require the planting of a new tree to the north west of the site, and the supervision of any pruning required by the development to the existing tree located on No 3 Hosking Street.

36. The site is located within the Sydney Harbour Catchment as identified by the Sydney Harbour Catchment Map. As such, s 6.6 of the Biodiversity SEPP precludes the grant of consent unless the Respondent council, or the Court on appeal, is satisfied that the proposed development ensures that, firstly, the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and secondly, that the impact on water flow in a natural waterbody will be minimised. For reasons identical to those at [34], I am so satisfied.

37. Likewise, the improved quality and reduced flow of stormwater resulting as a consequence of the development satisfies me that impacts of a kind that are set out at s 6.7(2) of the Biodiversity SEPP are minimised, without adverse impact on aquatic reserves or in respect of erosion or sedimentation.

38. I do not understand the site to be flood liable land and so I am satisfied of those matters about which I must be satisfied at s 6.8 of the Biodiversity SEPP.

39. I have considered the impact, if any, on recreational land uses and public access to the foreshore of Sydney Harbour and am satisfied that there is no impact on those aspects of recreation and public access at s 6.9 of the Biodiversity SEPP that are affected by the proposal.

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

40. The application is accompanied by BASIX certificate (Certificate No. A484013_03 dated 16 July 2024), prepared by Development Design Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004):

41. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

Conclusion

42. 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.

43. 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.

44. I note Inner West Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. 2023/0080 to rely on the documents as outlined in Annexure A.

Orders

45. The Court orders that:

1. The written request made pursuant to clause 4.6 of the Inner West Local Environment Plan 2022 in relation to a variation to the Floor Space Ratio standard (of clause 4.4 of the Inner West Local Environment Plan 2022), prepared by GSA Planning and dated 18 July 2024, is upheld.

1. The appeal is upheld.

2. Development Application 2023/0080, as amended, for the proposed alterations and additions including new upper level with roof top terrace and roof top pool at Lot 2 in Strata Plan 19435 also known as 5-7 Hosking Street, Balmain East in the State of New South Wales is determined by the grant of consent subject to conditions contained in Annexure ‘B’.

T Horton

Commissioner of the Court 

Annexure A

Annexure B

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Decision last updated: 26 July 2024