Beaini Corp Pty Ltd v Inner West City Council

[2022] NSWLEC 1560

Land and Environment Court

New South Wales

Medium Neutral Citation:

Beaini Corp Pty Ltd v Inner West City Council [2022] NSWLEC 1560

Hearing dates:

Conciliation conference on 21 September 2022

Date of orders:

14 October 2022

Decision date:

14 October 2022

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The Appeal is upheld.
(2) Development Application DA/2022/0104 for the demolition of all existing structures and the construction of a two storey semi-detached dwelling with carparking, associated landscaping and site works at 104 William St, Leichhardt, is determined by the grant of Development Consent, subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – semi-detached dwellings – 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, ss 34, 34AA
Leichhardt Local Environmental Plan 2013, cll 2.3, 2.7, 5.10, 5.21, 6.1, 6.4
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:

Beaini Corp Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/148494

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 Beaini Corp Pty Ltd (Applicant) against the deemed refusal of Development Application DA/2022/0104. The Development Application was lodged with Inner West Council on 7 February 2022, the Council being the Respondent in these proceedings.

2. The Development Application seeks consent for the demolition of all existing structures and the construction of a two storey, semi-detached dwelling, with carparking, associated landscaping and site works at 104 William St, Leichhardt, otherwise known as Lots 43 and 44 in DP 4288.

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 21 September 2022.

4. 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.

5. 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.

6. 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.

7. 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 2013), the subject site is zoned R1 General Residential wherein the use is permissible. Clause 2.3(2) of LLEP 2013 requires that regard be had to the zone objectives and this has been done.

2. Clause 2.7 (Demolition) of LLEP 2013 provides that demolition is permissible with Development Consent. As required by the clause, the impacts of that demolition have been considered and are dealt with in the agreed conditions of consent.

3. Clause 5.10 of the LLEP 2013 applies to the site. The site is not a heritage item nor is it located within a heritage conservation area. However, the site does adjoin heritage items at 100 and 102 William Street (Items No. 702 and 703). The parties agree that the proposal, as amended, will not detract from these items and is consistent with the objectives set out in cl.5.10 of LLEP 2013. As a result of the deliberations undertaken and the material provided, I am satisfied that the requirements of cl 5.10 have been met.

4. The requirements in cl 5.21 of LLEP 2013, concerning flood planning, are satisfied as the land is not within the flood planning area. Conditions of Development Consent have been imposed to ensure that the stormwater plans, as amended, satisfy the considerations in this clause.

5. Clause 6.1 of the LLEP 2013 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. The proposed works are not on land below 5 m AHD and it is unlikely the water table will be lowered. As a result of the deliberations undertaken, and the material provided, I am satisfied that due consideration has been given to the requirements of cl 6.1 and these requirements have been met.

6. Clause 6.2 (Earthworks) applies to the site. The nature of the earthworks proposed in the Development Application include minor excavation for building footings and excavation for the purpose of the lower ground level. The parties have considered the matters required by cl 6.2(3) of the LLEP 2013. I am satisfied that the proposed development is consistent with the objective of the clause.

7. Clause 6.4 of the LLEP 2013 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. As a result of the deliberations undertaken, and the material provided, I am satisfied that the requirements of this clause have been met.

8. The proposal was appropriately notified by the Respondent pursuant to the EPA Act and the Respondent’s Community Engagement Framework in March 2022. At the end of the notification period, the Respondent received submissions which have been considered as part of the development assessment process.

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

10. 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 Site has a long history of residential use and the proposed works do not include any change to the use of land that would result in concern with respect to contamination.

11. Consideration has been given to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP). The Statement of Environmental Effects prepared by GAT & Associates Pty Ltd (dated February 2022) notes that no trees of significance are proposed to be removed. I am satisfied that the Biodiversity and Conservation SEPP requirements have been met.

8. 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.

9. 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

10. 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 appeal is upheld.

2. Development Application DA/2022/0104 for the demolition of all existing structures and the construction of a 2 storey semi-detached dwelling with carparking, associated landscaping and site works at 104 William St, Leichhardt, is determined by the grant of Development Consent, subject to the conditions set out in Annexure ‘A’.

……………………….

Stuart Harding

Acting Commissioner of the Court

148494.22 (Annexure A) (261360, pdf)

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Decision last updated: 14 October 2022