Arnott v Inner West Council

[2024] NSWLEC 1495

Land and Environment Court

New South Wales

Medium Neutral Citation:

Arnott v Inner West Council [2024] NSWLEC 1495

Hearing dates:

Conciliation Conference 12 August 2024

Date of orders:

16 August 2024

Decision date:

16 August 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA/2023/0724 for partial demolition of existing structures, ground floor alterations and additions to a dwelling house and construction of a swimming pool with associated car parking and landscaping at Lot 37 in Deposited Plan 15123, known as 47 Elizabeth Avenue, Dulwich Hill is determined by the grant of consent subject to conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – residential development - alterations and additions – heritage – flood planning – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

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

Inner West Local Environmental Plan2022, cll 4.1, 4.3, 4.4, 5.10, 5.21, 6.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Joel Arnott (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Burgess (Solicitor)(Applicant)
S Turner (Solicitor)(Respondent)

Solicitors:
Piper Alderman (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/435366

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No. DA/2023/0724 (the DA) for development described as “Partial demolition of existing structures, ground floor alterations and additions to a dwelling house and construction of a swimming pool with associated car parking and landscaping” (the Proposed Development) at 47 Elizabeth Avenue, Dulwich Hill legally described as Lot 37 in Deposited Plan 15123 (the Site).

2. During the course of the proceedings, the Applicant has provided the Respondent with amended architectural plans, an update Flood Risk Assessment Report, an updated Heritage Impact Assessment and parking swept paths (Amended Application).

3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 12 August 2024. I presided over the conciliation conference.

4. 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 development consent to the development application subject to conditions.

5. 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. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 5.21 of the Inner West Local Environmental Plan 2022 (IWLEP) regarding compatibility with the flood function and flood behaviour on the Site. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement.

8. The Development Application as lodged, was notified to adjoining neighbours between 13 September 2023 and 27 September 2023. No submissions were received in response to the notification.

9. Owners’ consent was lodged with the original development application and is included with the Class 1 Application at Tab 2.

10. The Site is zoned R2 Low Density Residential under the IWLEP and the Proposed Development is permissible. Demolition also requires consent pursuant to cl 2.7 of the IWLEP.

11. Clause 4.3 of the IWLEP provides that the Site is subject to the maximum height of building development standard of 9.5m with which the Proposed Development complies because the maximum height of the existing building is retained at 5.8m and the proposed new addition is lower at a maximum height of 4.6m.

12. The Proposed Development complies with the maximum floor space ratio (FSR) development standard applicable to the Site of 0.6:1 pursuant to cl 4.4 of the IWLEP. The Proposed Development proposes an FSR of 0.38:1.

Flood planning and heritage

13. The Site is located in the Abergeldie Estate Heritage Conservation Area (HCA). As such, the Court as consent authority must consider the effect of the Proposed Development on the Abergeldie Estate HCA in accordance with the terms of cl 5.10 of the IWLEP.

14. The Applicant relies on a Heritage Impact Statement dated 26 June 2024 that considers the impact of the Proposed Development in its amended format on the Abergeldie Estate HCA.

15. Clause 5.21 of the IWLEP provides that a consent authority must not grant development consent on the Land unless it is satisfied that the development achieves the matters set out in cl 5.21(2) and 5.21(3). Flood planning cl 5.21 of the IWLEP provides as follows:

5.21   Flood planning

(1)  The objectives of this clause are as follows—

(a)  to minimise the flood risk to life and property associated with the use of land,

(b)  to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change,

(c)  to avoid adverse or cumulative impacts on flood behaviour and the environment,

(d)  to enable the safe occupation and efficient evacuation of people in the event of a flood.

(2)  Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

(a)  is compatible with the flood function and behaviour on the land, and

(b)  will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

(c)  will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

(d)  incorporates appropriate measures to manage risk to life in the event of a flood, and

(e)  will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

(3)  In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters—

(a)  the impact of the development on projected changes to flood behaviour as a result of climate change,

(b)  the intended design and scale of buildings resulting from the development,

(c)  whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d)  the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

(4)  A word or expression used in this clause has the same meaning as it has in the Considering Flooding in Land Use Planning Guideline unless it is otherwise defined in this clause.

(5)  In this clause—

Considering Flooding in Land Use Planning Guideline means the Considering Flooding in Land Use Planning Guideline published on the Department’s website on 14 July 2021.

flood planning area has the same meaning as it has in the Flood Risk Management Manual.

Flood Risk Management Manual means the Flood Risk Management Manual, ISBN 978-1-923076-17-4, published by the NSW Government in June 2023.

16. The Applicant relies on a Flood Risk Assessment dated June 2024 prepared by Martens and Associates. The Assessment confirms that a detailed Site flood risk assessment has been prepared using Council’s accepted WMAwater flood study TUFLOW model, along with Council’s provided flood certificate (annexed to the Assessment) for the Site. At p 35 the Flood Risk Assessment concludes that the proposed Site floor level set to the 1% AEP flood level is an acceptable alternative to the Flood Planning Level (FPL) and addresses the Site flood risk and is justifiable because:

“a. The Marrickville DCP recognises the need to balance flood management controls with other relevant controls.

b. The proposed FFL reduces the Site’s flood risk compared to the existing dwelling floor level.

c. The proposed FFL is safer with respect to flooding than a similar recently approved neighbouring development.

d. The proposed FFL is supportable by the heritage and town planning experts, whereas a higher FFL at the FLP would cause unacceptable heritage and town planning impacts.

e. The proposed FFL level aligns with the precedent set in the SDS v MC case as it considers the impracticality of retrospectively overlaying an inflexible numerical requirement and provides a considerate and sensible alternative.

f. The EP&A Act requires a consent authority to ‘allow reasonable alternative solutions’ to their standards. The proposed 1% AEP floor level is ‘reasonable alternative solution’ to raising the FFL to the FPL, and is therefore approvable.

g. The proposal complies with the Marrickville DCP 2011 Section 2.22 ‘Flood Management’ control C8 as it is below 30 m2, and the applicant’s town planning and heritage experts have demonstrated that no practical alternatives exist to raise the FFL any higher.”

17. The Development Application as amended increases the floor level by 310mm to the 1% AEP level. The Flood Risk Assessment addresses compliance with cl 5.21 of the IWLEP at Table 4 on p 23 and relevantly provides that:

1. the Proposed Development is compatible with the Site flood function and behaviour because the Proposed Development will not increase the number of people onsite and will increase the existing dwelling floor level by 310 mm, hence the development will reduce the risk to people and property;

2. There is a designated attic level which persons can evacuate to and shelter in place in all flooding events including the Probably Maximum Flood (PMF);

3. the suspended design of the addition and the removal of the existing garage will have negligible impacts on the flood behaviour;

4. due to the nature of the Proposed Development there would likely be negligible offsite flood impacts, hence, will not adversely affect the environment or cause increased risk of erosion, siltation destruction of riparian vegetation or bank stability issues.

18. The Heritage Impact Statement concludes at p 31 that the Proposed Development does not have an adverse impact on the HCA and conserves the key characteristics of the primary dwelling on the Site, whereas the alternative FPL heights “will result in an adverse and unacceptable impact on the heritage significance of The Abergeldie Estate Heritage Conservation Area … involving unacceptable visual impacts arising from the height of the addition behind the dwelling.”

19. The agreed conditions of consent at Annexure A also address flood planning at conditions 22 (Flood Risk Management Plan), 23 (Amended Architectural Plans to Reflect Flood Risk Management Plan), 39 (Flood Risk Management Plan Certification) and 41 (Flood Risk Management Plan).

20. On this basis, the Court is satisfied that the Proposed Development:

1. is complementary to the Abergeldie Estate HCA and therefore satisfies the considerations under cl 5.10 of the IWLEP; and

2. achieves the objectives of cl 5.21 of the IWLEP with respect to flood planning.

21. Clause 6.3 of the IWLEP requires the consent authority to be satisfied of several maters in relation to stormwater management before granting development consent.

22. At Tab 13 of the Class 1 Application is a stormwater management plan detailing how stormwater will be managed.

23. The Development Application does not propose any changes to the existing dwelling roof drainage system. Further, conditions of consent agreed between parties includes condition 19 (Stormwater Drainage System – Minor Developments (OSD not required)) with respect to erosion and sediment control during demolition and construction of works.

24. As such, the Court is satisfied that the Development Application as amended satisfies the matters set out in cl 6.3 of the IWLEP.

25. The Proposed Development does not propose any clearing of native vegetation on the Site, nor is it located within any of the catchments identified in Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021.

26. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not consent to the carrying out of development on the Land unless it has considered whether the Land is contaminated, and if the Land is contaminated, is satisfied that the development is suitable in its contaminated state (or will be suitable, after remediation) for the purposes for which the development is proposed to be carried out.

27. There is no proposal to change the past and existing residential use of the Site. The Site has not been identified as containing land contamination or contains a land use likely to generate land contamination. Accordingly, consideration of a report specifying the findings of a preliminary investigation of the Land is not required by s 4.6 of the Resilience and Hazards SEPP.

28. Demolition and construction waste arising from the development will be managed in accordance with the Waste Management Plan.

29. For these reasons, the Court is satisfied that the Site is suitable for the proposed residential use.

30. 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. I adopt the reasons given by the parties in accordance with this judgment.

31. 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.

Notations:

32. The Court notes:

1. That the Respondent as the relevant consent authority has agreed, under section 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application DA/2023/0724 to rely upon the amended plans and documents as follows:

Plan, Revision, Issue	Plan Name	Prepared by	Date
P2309934JR01V01	Flood Risk Assessment Report	27 June 2024	Martens & Associates
02-01 (Rev A)	Existing Ground Floor Plan	Amrish Maharaj Architecture	16 April 2024
02-02 (Rev A)	Existing Roof Plan	Amrish Maharaj Architecture	16 April 2024
02-03 (Rev B)	Proposed Ground Floor Plan/Concept Landscape Plan	Amrish Maharaj Architecture	24 June 2024
02-04 (Rev B)	Proposed Roof Plan	Amrish Maharaj Architecture	24 June 2024
03-01 (Rev B)	Elevations 01	Amrish Maharaj Architecture	24 June 2024
03-02 (Rev B)	Elevations 02	Amrish Maharaj Architecture	24 June 2024
03-03 (Rev A)	Elevations 03	Amrish Maharaj Architecture	24 June 2024
03-04 (Rev B)	Sections 01	Amrish Maharaj Architecture	24 June 2024
03-05 (Rev B)	Sections 02	Amrish Maharaj Architecture	24 June 2024
04-01 (Rev B)	Shadows Diagrams 01	Amrish Maharaj Architecture	24 June 2024
04-02 (Rev B)	Shadow Diagrams 02	Amrish Maharaj Architecture	24 June 2024
04-03 (Rev B)	Shadow Diagrams 03	Amrish Maharaj Architecture	24 June 2024
04-04 (Rev B)	Shadow Diagrams 04	Amrish Maharaj Architecture	24 June 2024
05-01 (Rev 02)	Materials and Finishes	Amrish Maharaj Architecture	25 October 2023
05-02 (Rev B)	Area Calculations Plans 01	Amrish Maharaj Architecture	24 June 2024
05-03 (Rev B)	Area Calculation Plans 02	Amrish Maharaj Architecture	24 June 2024
05-04 (Rev B)	Area Calculations Plans 03	Amrish Maharaj Architecture	24 June 2024
05-05 (Rev A)	Streetview Perspectives 01	Amrish Maharaj Architecture	16 April 2024
05-06 (Rev A)	Streetview Perspectives 02	Amrish Maharaj Architecture	16 April 2024
05-07 (Rev A)	Streetview Perspectives 03	Amrish Maharaj Architecture	16 April 2024
05-08 (Rev A)	Building Perspectives	Amrish Maharaj Architecture	16 April 2024
V2	Heritage Impact Statement	NBRS	26 June 2024

Orders:

33. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA/2023/0724 for partial demolition of existing structures, ground floor alterations and additions to a dwelling house and construction of a swimming pool with associated car parking and landscaping at Lot 37 in Deposited Plan 15123, known as 47 Elizabeth Avenue, Dulwich Hill is determined by the grant of consent subject to conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 16 August 2024