Bonus v Inner West Council

[2020] NSWLEC 1016

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bonus v Inner West Council [2020] NSWLEC 1016
Hearing dates:	Conciliation conference on 14 October 2019; 25 October 2019; 1 November 2019; 15 November 2019; 19 December 2019
Date of orders:	21 January 2020
Decision date:	21 January 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   Leave is granted to the Applicant to amend the development application and rely on the amended plans listed in condition 4 of Annexure A. (2)   The Applicant is to pay the Respondent’s re-notification costs of $1,105 payable within 28 days of this agreement. (3)   The applicants are to pay the Respondent’s costs thrown away as a result of the amendment of the application in the amount of $7,000 payable within 28 days of this agreement. (4)   The applicant’s written requests under clause 4.6 of the Leichhardt Local Environmental Plan 2013 seeking a variation of the development standards for floor space ratio and foreshore building line under clauses 4.4 and 6.5 of the Leichhardt Local Environmental Plan 2013 are upheld. (5)   The appeal is upheld. (6)   Development consent is granted to development application DA/2019/455 for demolition of existing structures, tree removal, construction of two semi-detached dwellings with on-site parking, and associated works, including retention of existing boat shed, landscaping works, Torrens title subdivision and remediation of site at 80-82 Louisa Road, Birchgrove is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPEAL – semi-detached dwelling development – heritage conservation – conciliation conference – agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy No 55 Remediation of Land
Category:	Principal judgment
Parties:	Geoff Bonus (Applicant) Inner West Council (Respondent)
Representation:	Counsel: D Baird (Solicitor) (Applicant) S Turner (Solicitor) (Respondent)   Solicitors: Baird Lawyers (Applicant) Inner West Council (Respondent)
File Number(s):	19/48549
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979(NSW) (EPA Act) relating to the refusal of Development Application No. D/2018/455 seeking consent for the demolition of existing structures, tree removal, construction of two part-two and part-four storey semi-detached dwellings with on-site parking, and associated works, including swimming pools, landscaping works, Torrens title subdivision and remediation of the site at 80-82 Louisa Road, Birchgrove.

2. The site comprises 3 allotments, which are legally described as Lot 27 in DP 741370, Lot 1 in DP 189851 and Lot 2 in DP 189851 having a total site area of 469m².

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 October 2019, 25 October 2019, 1 November 2019, 15 November 2019 and 19 December 2019. The proceedings commenced onsite, with one resident objection being heard at the neighbouring property during which the Court, in the company of the parties and experts, was invited to view the subject site from various rooms inside the neighbouring property.

4. Following the onsite view, the parties continued conciliation discussions at which the parties reached in-principle agreement on the matters in contention. I presided over the conciliation conference, and adjourned the conference to allow amended plans to be prepared.

5. The conciliation conference was reconvened a number of times before a signed agreement was prepared in accordance with s 34(10) of the LEC Act and was filed with the Court on 19 December 2019. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

6. 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 s 34 agreement.

7. 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. There are jurisdictional prerequisites contained in the relevant provisions of the following:

• State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55)

• Leichhardt Local Environmental Plan 2013

8. The parties explained to me during the conference as to how the jurisdictional requirements have been satisfied in order to allow the Court to make orders that give effect to the parties’ agreement. I am satisfied that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The land to which the development application relates is within the R1 General Residential zone under the provisions of the Leichhardt Local Environmental Plan 2013 (LLEP). Development for the purposes of attached dwellings is permitted with consent, and I am satisfied that the proposal is consistent with the objectives of the zone which are in the following terms:

•  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 improve opportunities to work from home.

•  To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

•  To provide landscaped areas for the use and enjoyment of existing and future residents.

•  To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

•  To protect and enhance the amenity of existing and future residents and the neighbourhood.

2. On the basis of the Detailed Contamination Assessment and Remediation Action Plan prepared by Geotechnique dated 31 May 2018, I am satisfied that the land will be remediated before the land is used for the purpose for which the development is proposed to be carried out, pursuant to cl 7(1) of SEPP 55, and as provided for in the conditions of consent at Annexure ‘A’.

3. Clause 4.4 of the LLEP provides for a maximum floor space ratio (FSR) of 0.7:1. The parties are agreed that the building exceeds the FSR control, and the Applicant relies on a written request prepared by GSA Planning dated December 2019 pursuant to cl 4.6 of the LLEP to justify the contravention of the FSR control. I am satisfied that the written request adequately addresses the provisions of cl 4.6 of the LLEP for the following reasons:

• The FSR in the proposal is measured at 1.065:1 for the dwellings, and with the inclusion of the existing boatshed, 1.125:1.

• Compliance with the development standard is unreasonable or unnecessary as the objectives of the height control at cl 4.4 of the LLEP are achieved notwithstanding the non-compliance with the standard. These objectives are set out as follows:

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

(a) to ensure that residential accommodation—

(i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and

(ii) provides a suitable balance between landscaped areas and the built form, and

(iii) minimises the impact of the bulk and scale of buildings,

• I accept that the proposal presents as a single storey plus roof volume when viewed from the street, and that a considerable portion of the lower ground level is below ground and does not contribute to the bulk of the building. Further, the retention of the boatshed is a desirable element of the proposal, despite this adding to floorspace.

• I also accept that the proposal complies with the landscape area and site coverage development standards prescribed in the LLEP, providing appropriate balance between landscaped area and built form.

• Finally I am satisfied that the proposal’s envelope comprises an external volume that is similar to a compliant building (with a similar roof form), and that the proposed building provides a greater rear setback than the existing building on the site.

• Next, I consider there to be sufficient environmental planning grounds to justify the contravention of the height control as the objectives of the FSR control and R1 zone are achieved by the proposal presenting an appropriate built form that is compatible with the bulk and scale of recently approved neighbouring dwelling houses, and with pre-existing dwellings that were constructed in an era before the gazettal of the current LEP and associated FSR development standard. I am also satisfied that the proposed dwellings have been designed to be largely within the existing building envelope, and I consider it relevant that unacceptable environmental and amenity impacts result.

• On the basis of the above, I am satisfied that the proposed development is consistent with the objectives of the development standard, and the objectives of the zone, set out at [8(1)], and so is in the public interest.

4. The application also relies on a written request seeking to justify the contravention of cl 6.5 of the LLEP which limits development on foreshore area. In general terms, the request relies on the exceedance being an existing non-compliance, and in consideration of the particular alignment of the foreshore building line on the site given the irregular water’s edge. I am satisfied that the written request adequately addresses the provisions of cl 4.6 of the LLEP for the following reasons:

• Compliance with the development standard is unreasonable or unnecessary as the objective of the height control at cl 6.5 of the LLEP is achieved notwithstanding the non-compliance with the standard. The relevant objective being “to ensure that development in the foreshore area will not adversely impact on natural foreshore processes or affect the significance and amenity of the area.”

• I am satisfied that the elements located within the foreshore building line are limited to the north-eastern portion of the building, are complementary to the building design, are not out of character with neighbouring development and will not interfere with the intertidal zone. Relevantly, the proposal preserves the natural foreshore area, retains the existing boatshed and improves the amenity and visual qualities of the site from Parramatta River.

• Next, I consider there to be sufficient environmental planning grounds to justify the contravention of the foreshore building line control as the objectives of the control and R1 zone are achieved by the proposal presenting an appropriate built form, which is compatible with the bulk and scale of the recently approved neighbouring dwelling houses. In arriving at this opinion of satisfaction, I also consider the particular aspects of the site relevant, being shorter in length, and displaying aspects of the natural shoreline when viewed in context with adjoining properties.

• On the basis of the above, I am satisfied that the proposed development is consistent with the objectives of the development standard, and the objectives of the zone, set out at [8(1)], and so is in the public interest.

9. Having formed an opinion 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 Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

10. 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.

11. The Court orders that:

1. Leave is granted to the Applicant to amend the development application and rely on the amended plans listed in condition 4 of Annexure A.

2. The Applicant is to pay the Respondent’s re-notification costs of $1,105 payable within 28 days of this agreement.

3. The applicants are to pay the Respondent’s costs thrown away as a result of the amendment of the application in the amount of $7,000 payable within 28 days of this agreement.

4. The applicant’s written requests under clause 4.6 of the Leichhardt Local Environmental Plan 2013 seeking a variation of the development standards for floor space ratio and foreshore building line under clauses 4.4 and 6.5 of the Leichhardt Local Environmental Plan 2013 are upheld.

5. The appeal is upheld.

6. Development consent is granted to development application DA/2019/455 for demolition of existing structures, tree removal, construction of two semi-detached dwellings with on-site parking, and associated works, including retention of existing boat shed, landscaping works, Torrens title subdivision and remediation of site at 80-82 Louisa Road, Birchgrove is approved subject to the conditions in Annexure A.

………………………………

T Horton

Commissioner of the Court

Annexure A (533 KB)

Architectural Plans (5.41 MB)

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Decision last updated: 21 January 2020