Bryant v Inner West Council

[2023] NSWLEC 1077

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bryant v Inner West Council [2023] NSWLEC 1077

Hearing dates:

Conciliation Conference on 17 February 2023

Date of orders:

17 February 2023

Decision date:

17 February 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to development application number DA/2021/1063 at 9 Church Street, Balmain (Lot 1 in DP 207869) subject to the conditions of consent contained in Annexure A.

Catchwords:

APPEAL – development consent granted subject to conditions – alterations and additions to attached dwelling – conciliation conference – agreement reached

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021

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

Leichhardt Local Environmental Plan 2015, cl 5.10

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

Category:

Principal judgment

Parties:

Craig John Bryant (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
P Kingston (Solicitor) (Applicant)
J Marsland (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicant)
Apex Planning & Environment Law (Respondent)

File Number(s):

2022/282581

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns the grant of development consent for alterations and additions to the ground and first floor of the existing attached dwelling house on land identified as Lot 1 in DP 207869 and known as 9 Church Street, Balmain. The development consent was granted on 28 March 2022 by Inner West Council subject to conditions with which the applicant is dissatisfied. This appeal is lodged pursuant to the right of appeal existing under s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). As there is no right to appeal against the conditions of a development consent, the appeal concerns the whole of the decision made by the Council. In considering the appeal, the Court re-exercises the functions of the Council in determining the 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 conditions with which the applicant is dissatisfied concern a design change for the first floor addition and the internal stairs, the requirement for privacy measures for the first floor bedroom window, a change to levels of the final built form, and tree protection.

3. The parties agreed to the matter being listed for a conciliation conference pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference commenced on 17 February 2023. I presided over the conciliation conference.

4. 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 agreement reflects the signed agreement filed on 3 February 2023, and was reached following the agreement of the Council to an amendment to the development application, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court. The amendments to the development application are to remove the Callistemon viminalis (Weeping Bottlebrush) in accordance with Issue C amended plans.

5. 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, which includes updated conditions concerning tree protection and tree planting, and the removal of the conditions requiring the first floor design change and the privacy measures. The signed agreement is supported by a Jurisdictional Note that sets out the nature of the appeal, the reasons for the agreement and the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Note, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. 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 works are for the purposes of a dwelling house, which is a permissible use in the R1 General Residential zone pursuant to the Leichhardt Local Environmental Plan 2013 (LLEP).

• The site on which the development is proposed is located within the Town of Waterview Heritage Conservation Area. I am satisfied, based on the Heritage Impact Statement dated September 2021, that the development will not have an adverse effect on the heritage significance of the heritage conservation area, in accordance with the consideration required by cl 5.10(4) of the LLEP.

• The proposed development complies with the applicable development standards in the LLEP.

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

• The development application was accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the EPA Regulation 2000.

• The development application was notified for a period of 14 days, and I have considered the issues raised by those submissions, which are summarised in the Development Assessment Report dated 5 November 2021.

• 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. Inner West Council as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application reference number DA/2021/1063 the subject of these proceedings to rely on the amended plans and documents listed at Condition 1 of Annexure A.

9. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application number DA/2021/1063 at 9 Church Street, Balmain (Lot 1 in DP 207869) subject to the conditions of consent contained in Annexure A.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 17 February 2023