Baker v Inner West Council

[2022] NSWLEC 1210

Land and Environment Court

New South Wales

Medium Neutral Citation:

Baker v Inner West Council [2022] NSWLEC 1210

Hearing dates:

Conciliation conference on 12 April 2022

Date of orders:

19 April 2022

Decision date:

19 April 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Development Application DA/2021/0192 (as amended) for the demolition of shed, existing carport and metal roof area at rear of existing dwelling and existing porch at front of existing dwelling, construction of a two (2) storey detached dual occupancy at front of site, and associated works, including strata subdivision at 27 The Boulevarde, Lilyfield is granted subject to the conditions set out in Annexure “A”.

Catchwords:

APPEAL – development application – two-storey detached dual occupancy – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 4.15, 4.16

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Land and Environment Court Act 1979, s 34

Leichhardt Local Environmental Plan 2013, cl 2.6

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

Texts Cited:

Draft Inner West Local Environmental Plan 2020

Category:

Principal judgment

Parties:

Gregory E. Baker (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
G Christmas (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Applicant)
Apex Lawyers (Respondent)

File Number(s):

2022/8451

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the partial demolition of existing structures, the construction of a detached two-storey dual occupancy and strata subdivision at 27 The Boulevarde, Lilyfield. The development application was refused by Inner West Council on 22 June 2021. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 12 April 2022. I presided over the conciliation conference.

3. 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 the parties. The signed agreement was provided at the conciliation conference. The agreement followed the lodging of amended plans on the NSW Planning Portal on 11 April 2022 with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amended plans address the street frontage, which has changed to a single storey with a hipped roof and a lower skillion front veranda roof with dormer windows facing the street. The amended plans also address the rear dwelling entry by the inclusion of a masonry entry wall and gate in line with the front dwelling, with a clear street number, front fence and separate front gate so that it is readily identified as a separate entry address in the street. In addition, the amended plans widen the southern setback to approximately 2m to form a generous entry path to the rear dwelling, with landscaping either side and an entry gate and continuous pathway to the front door of the existing dwelling. The proposed development now includes a detailed landscaping plan that includes a medium sized canopy tree for each dwelling.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the statutory controls that are of relevance to the development application, and how they are satisfied.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development is for the purpose of a dual occupancy, which is a permissible use in the R1 General Residential zone in which the site is located, pursuant to the Leichhardt Local Environmental Plan 2013 (LLEP). The strata subdivision of land is also permissible with consent, pursuant to cl 2.6 of the LLEP.

• The proposed development complies with the applicable development standards in the LLEP for height, floor space ratio, site coverage, and landscaped area.

• Based on the stormwater plan, I am satisfied of the matters in cl 6.4 of the LLEP concerning stormwater management.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of residential use, it is unlikely to be contaminated.

• The Draft Inner West Local Environmental Plan 2020 (Draft IWLEP) was publicly exhibited on 16 March 2020 and is therefore a draft instrument that is required to be considered. Dual occupancies are prohibited in the R1 General Residential zone pursuant to the Draft IWLEP. However, the Draft IWLEP remains in draft form with no clear date for its gazettal, and it includes a savings provision that would allow development applications made before its commencement to be considered as if it had not commenced.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, 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.

8. The Court notes that:

1. The Inner West Council (the Council) as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA/2021/0192 the subject of these proceedings as shown in the following amended plans and details referred to as “the Amended DA”:

Architectural Plans by Frank Takos & Associates

Drawing No.	Drawing Title	Date
22-03-00 Revision A 22-03-01 Revision A 22-03-02 Revision A 22-03-03 Revision A 22-03-04 Revision A 22-03-05 Revision A 22-03-06 Revision A 22-03-07 Revision A 22-03-08 Revision A 22-03-09 Revision A 22-03-10 Revision A	Dwg Sch, Calcs & Elevations Section & Window Schedule & BASIX Requirements Site & Ground Floor Plans First Floor Plan Roof & Concept Stormwater Plan Site Analysis, Waste Management Plan, Silt Fence and Driveway Stabilised Plans Landscape & Open Space Plan Proposed Subdivision Strata Plan Proposed Elevations Streetscape Elevations Existing & Proposed Dwelling Elevations Lots 1 & 2	7 April 2022 7 April 2022 7 April 2022 7 April 2022 7 April 2022 7 April 2022 7April 2022 7 April 2022 7 April 2022 7 April 2022 7 April 2020

Landscape Plans by Conzept Landscape Architects

Drawing No.	Drawing Title	Date
LPS34/22-306/01 Rev A LPS34/22-306/02 Rev A LPS34/22-306/03 Rev A LPS34/22-306/04Rev A LPS34/22-306/05 Rev A	Hardscape Plan Landscape Plan Details Specifications Landscape Area	31 March 2022 31 March 2022 31 March 2022 31 March 2022 31 March 2022

Stormwater Plan by A C M Civil & Structural Engineers

Drawing No.	Drawing Title	Date
20036 H 1/1 Rev 2	Storm Water Plan	8 April 2022

2. On 11 April 2022 the Amended DA was lodged / published with the NSW Planning Portal.

3. On 11 April 2022 the Applicant filed with the Court a copy of the Amended DA.

9. The Court orders that:

1. The Appeal is upheld.

2. Development Application DA/2021/0192 (as amended) for the demolition of shed, existing carport and metal roof area at rear of existing dwelling and existing porch at front of existing dwelling, construction of a two (2) storey detached dual occupancy at front of site, and associated works, including strata subdivision at 27 The Boulevarde, Lilyfield is granted subject to the conditions set out in Annexure “A” to this agreement.

……………………….

J Gray

Commissioner of the Court

Annexure A (225155, pdf)

**********

Decision last updated: 19 April 2022