Burns v Inner West Council

[2020] NSWLEC 1475

Land and Environment Court

New South Wales

Medium Neutral Citation:

Burns v Inner West Council [2020] NSWLEC 1475

Hearing dates:

Conciliation conference on 22 September 2020

Date of orders:

09 October 2020

Decision date:

09 October 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders:

(1) The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 4 of the conditions at annexure A.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application in the amount of $2,500.00, payable within 28 days of these orders.

(3) The appeal is upheld.

(4) Development Application No. D/2019/292 for alterations and additions to the existing dwelling, demolition of the existing garage at rear of site and replacement with a new two storey building to be used as a secondary dwelling and associated works, at 182 Darling Street, Balmain, is approved, subject to the conditions at annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Leichhardt Local Environmental Plan 2013

State Environment Planning Policy (Affordable Rental Housing) 2009

Category:

Principal judgment

Parties:

Ryan Burns (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Knox (Solicitor) (Applicant)
S Allam (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2020/19464

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2019/292 for alterations and additions to the existing dwelling, demolition of the existing garage and replacement with a new two storey building to be used as a secondary dwelling, and associated works including remediation of the site (the proposal) at 182 Darling Street, Balmain (the site) by Inner West Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 September 2020. I presided over the conciliation conference.

3. 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.

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

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to Div 2 of Pt 2 of the State Environment Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) and cll 5.10(4) and 6.4 of the Leichhardt Local Environmental Plan 2013 (LLEP 2013).

Planning framework

6. The proposal is made pursuant to Div 2 of Pt 2 of SEPP ARH and LLEP 2013. SEPP ARH applies to the site at cll 7, 21 and Sch 1.

7. The site is zoned R1 General Residential (Land Zoning Map – Sheet LZN_011 of LLEP 2013). The objectives of the R1 zone, to which regard must be had, are:

• 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.

8. There are no contentions raised by the Council regarding non-compliance with the relevant development standards under Sch 1 of SEPP ARH and Pt 4 of LLEP 2013. The secondary dwelling has a gross floor area of 60sqm.

9. The Council raised two contentions regarding the original proposal; that the proposal had an unacceptable impact on the heritage significance of the Balmain heritage conservation area (Sch 5, Pt 2 to LLEP 2013) and that the proposal did not suitably manage the stormwater on the site. Both contentions raised jurisdictional issues, pursuant to cll 5.10(4) and 6.4 of LLEP 2013.

10. The applicant amended the proposal to address both contentions and those amendments are summarised in a response to the applicant’s solicitor by the architect, John Oultram, dated 15 April 2020. The Council is satisfied that the amended proposal addresses both contentions raised.

11. The site is within the Balmain heritage conservation area (Heritage map – Sheet HER_011 of LLEP 2013). The consent authority, or the Court exercising the functions of the consent authority, must consider the effect of the proposal on the heritage significance of the area, before granting consent under cl 5.10 of LLEP 2013, pursuant to cl 5.10(4). I have considered the Heritage Impact Statement Addendum (HIS) prepared by John Oultram Heritage & Design dated June 2020 and, in the absence of any evidence to the contrary, I accept the conclusions of the HIS that the proposal retains the contribution made by the existing terrace house to the heritage significance of the Balmain heritage conservation area, because the proposal retains evidence of the extent and form of the rear wing, the materials complement the character of the heritage conservation area because they are light to mid earth tones, and the internal changes to the terrace house do not distort the overall layout and retains the existing ceilings.

12. Clause 6.4 of LLEP 2013 applies to the site and requires the consent authority, or the Court exercising the functions of the consent authority, to be satisfied that the proposal is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and to include, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and to avoid any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact. I have considered the amended proposal and the Stormwater Drainage Plan prepared by Joseph Natoli, licensed civil and structural engineer, and, in the absence of any evidence to the contrary, I am satisfied that the proposal meets the requirements of cl 6.4 of LLEP 2013 because the landscaped area for residential accommodation in zone R1, pursuant to cl 4.3A of LLEP 2013, is met; and because the BASIX commitments include a rainwater tank to collect water from at least 30sqm of roof area and to be connected to all toilets and at least one outdoor tap; both of which address the particulars of the contention raised regarding stormwater.

Orders

13. The orders of the Court are:

1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 4 of the conditions at annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application in the amount of $2,500.00, payable within 28 days of these orders.

3. The appeal is upheld.

4. Development Application No. D/2019/292 for alterations and additions to the existing dwelling, demolition of the existing garage at rear of site and replacement with a new two storey building to be used as a secondary dwelling and associated works, at 182 Darling Street, Balmain, is approved, subject to the conditions at annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (203472, pdf)

Plans (3755070, pdf)

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Decision last updated: 09 October 2020