Central Property Holding Pty Ltd v Inner West Council

[2024] NSWLEC 1838

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Central Property Holding Pty Limited and Wheeler v Inner West Council [2024] NSWLEC 1838

Hearing dates:

Conciliation conference on 20 December 2024

Date of orders:

24 December 2024

Decision date:

24 December 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $4,000 within 28 days of these orders.

(2) The written request made pursuant to clause 4.6 of the Inner West Local Environmental Plan 2022 in relation to a variation to the Site Coverage standard at clause 4.3C of the Inner West Local Environmental Plan 2022, prepared by Sutherland Planning and dated 7 November 2024, is upheld.

(3) The appeal is upheld.

(4) Development application 2024/0153/1, as amended, for the alterations and additions to the existing commercial building including subdivision of the site into three (3) Torrens Title lots and construction of dwellings on each lot and associated site works and landscaping at Lot D in deposited Plan 323118 also known as 81a College street, Balmain, is determined by the grant of consent, subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to dwelling house in R1 General Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9

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

State Environmental Planning Policy (Sustainable Buildings) 2022, ss 2.1, 4.2

Inner West Local Environmental Plan 2022, cll 2.2, 4.1B, 4.3, 4.3C, 4.4, 4.6, 5.10, 6.1, 6.2, 6.4, 6.12, Sch 5

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Central Property Holding Pty Limited (First Applicant)
Tone Wheeler (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (First Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicants)
Inner West Council (Respondent)

File Number(s):

2024/189498

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Inner West Council (the Council) of development application DA/2024/0153/1 seeking consent for alterations and additions to an existing dwelling including subdivision of the site into three lots and construction of an attached dwelling on each lot and associated site works and including swimming pools at 81A College Street, Balmain.

2. On 20 December 2024, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

3. Prior to the conciliation conference, the parties reached agreement on the matters in contention, and subject to amended plans and other documents for which leave is sought. A signed agreement was submitted to the Court on 20 December 2024, in accordance with s 34(10) of the LEC Act.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

5. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicants, 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.

6. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

8. The Development Application was lodged on 6 March 2024, and was notified for a period of 21 days in accordance with the Council’s Community Participation Plan, in response to which seven objections were received.

9. The site is located within the R1 General Residential zone, identified on the relevant Land Zoning Map at cl 2.2 of the Inner West Local Environmental Plan 2022 (IWLEP), in which the proposes uses are permitted with consent and where consistent with the following objectives for development in the R1 zone:

•  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 provide residential development that maintains the character of built and natural features in the surrounding area.

10. The development proposes subdivision into three lots that are all in excess of the minimum lot size of 200m2, permitted by cl 4.1B of the IWLEP.

11. The floor space ratio standard (FSR) that applies to the site by operation of cl 4.4(2B) of the IWLEP is 0.9:1. The gross floor area of the development, when expressed as the FSR applicable to each of the three lots, complies.

12. Development consent is precluded by cl 4.3C(3) of the IWLEP, if development proposes a landscaped area of less than 15%-20% of the site, depending on the site area of the relevant lot, and a site coverage of not more than 60% of the site. The development on the proposed Lots 1 and 3 represents a site coverage greater than 60% of those sites. The Applicant relies upon a written request authored by Sutherland Planning dated 7 November 2024 (the written request) seeking to vary the control at cl 4.3C(b) of the IWLEP.

13. The written request, and the area calculations on architectural drawing 980 Rev C, identify the site coverage to Lot 1 as 67.3% and Lot 3 as 66.24%.

14. The written request asserts the compliance with the site coverage control at cl 4.3C is unreasonable or unnecessary as the proposal is consistent with the objectives of the relevant standard. Those objectives are:

(a)  to provide landscaped areas for substantial tree planting and for the use and enjoyment of residents,

(b)  to maintain and encourage a landscaped corridor between adjoining properties,

(c)  to ensure that development promotes the desired character of the neighbourhood,

(d)  to encourage ecologically sustainable development,

(e)  to control site density,

(f)  to provide for landscaped areas and private open space.

15. I am satisfied the proposed development is consistent with the objectives at cl 4.3C of the IWLEP for the reasons set out in the written request, summarised as follows:

1. The development complies with the minimum landscaped area at cl 4.3C(3)(a) of the IWLEP, where landscape plans demonstrate the design of trees, shrubs and ground covers for outdoor use and where the relevant private open space requirement of the Leichhardt Development Control Plan 2013 are achieved.

2. The proposal introduces landscape pockets where no landscaped corridor has otherwise existed, according to the historical chronology set out in the Heritage Impact Assessment prepared by Mr Colin Brady (the HIA).

3. The adaptive reuse of existing buildings is encouraged by cl 6.12 of the IWLEP such that the desired character of the neighbourhood can be said to include proposed development such as that proposed, and where the proposal increases the area of landscaped open space on the site, while reducing the site coverage, GFA and FSR when compared to the existing situation.

4. Ecologically sustainable development is addressed by the Stormwater Plans, and the exceedance of site coverage is not due to uncontrolled site density as the landscaped area is achieved on each proposed lot, as is the FSR that complies with the applicable standard. So understood, landscaped area and private open space are achieved, notwithstanding the non-compliance.

16. I am also satisfied that the environmental planning grounds set out in the written request are sufficient to justify the contravention of the standard at cl 4.3C of the IWLEP insofar as the existing building is retained, consistent with cl 6.12 of the IWLEP, albeit a building that currently exceeds the site coverage. Its adaptive reuse is consistent with the desired future character of the area. The development proposed is of a kind that is consistent with objects of the EPA Act inasmuch as the development is orderly and economic, and promotes good design and amenity of the built environment.

17. For the reasons set out above, I am satisfied the written request has demonstrated those matters required to be demonstrated at cl 4.6 (3) of the IWLEP and I find the written request should be upheld.

18. The site is also located within the Town of Waterview Heritage Conservation Area (the HCA), identified in Sch 5 of the IWLEP, and is within the vicinity of an item of heritage significance known as the Dry Dock Hotel. On the basis of the assessment contained in the HIA cited at [15(2)] and the agreement of the experts retained by the parties in this matter, I consider the effect of the proposal on the HCA and the Dry Dock Hotel to be acceptable in accordance with cl 5.10 of the IWLEP.

19. The Flood Risk Management Plan prepared by SGC and dated 22 November 2024 (Flood Report) cites the Leichhardt Flood study to determine the flood affectation applicable to the site. According to Table 2.1 of the Flood Report, the proposal achieves flood planning levels nominated in the flood certificate issued by the Council. The Flood Report also proposes a flood evacuation strategy, and agreed conditions of consent require the preparation of a Flood Risk Management Plan. On this basis, I am satisfied the proposal is compatible with the flood behaviour of the site, and development will not adversely affect the safe occupation or evacuation of the site, and incorporates appropriate measures to manage risk to life, pursuant to cl 5.21(2) of the IWLEP.

20. The site is identified on the relevant map at cl .61(2) of the IWLEP as Class 5 Acid Sulfate Soils, however as no excavation is proposed below reduced level (RL) 5m AHD, an Acid Sulfate Soils Management Plan is not required.

21. That excavation that is proposed, and shown on basement plans, is supported by a structural engineering report prepared by Acroyali Engineers dated 22 October 2024. I have considered those matters at cl 6.2 of the IWLEP that must be considered. On the basis of the following documents, I conclude the earthworks are acceptable:

1. Stormwater Concept Design Plans (Stormwater Plans) prepared by SGC (Revision C)

2. Landscape Plan prepared by Zenith Landscape Designs dated 27 November 2024.

22. For similar reasons, I am also satisfied that the stormwater management depicted in the Stormwater Plans, and extent of permeable surfaces and onsite stormwater retention is acceptable as required at cl 6.3(3) of the IWLEP. In particular, I note the proposed retention of water in underground rainwater tanks that are to be fitted with first flush system so as to minimise the impact of stormwater runoff into waterways.

23. As stated briefly at [15(3)], the development proposes the adaptive reuse of an existing building that the parties agree was lawfully constructed for a purpose other than residential accommodation, as required by cl 6.12(2) of the IWLEP. The site is not within a zone excluded by operation of subl (3), and the parties agree, and I am satisfied, that the development will not adversely affect the streetscape or character of the area, will substantially retain the form and significant fabric of the existing building and when the FSR of each of the three proposed dwellings is properly understood, there is no increase in FSR on a site.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

24. For reasons not unrelated to those at [22], I am satisfied that the water quality and water flow are consistent with those matters about which I must be satisfied in accordance with s 6.6(2) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). The Stormwater Plans propose three x 5,000L rainwater tanks and silt arrestor pits, and a Civil Engineering Statement prepared by SGC dated 18 December 2024 summarises MUSIC modelling and DRAINS modelling that demonstrates improvement in water quality, and a reduction in water flow as a result of the development.

25. Furthermore, as the Stormwater Plans depict filtration devices in pits proposed on the site, and storm filters in the OSD satisfies me that any impact on animals or vegetation is minimised, will not have an impact on aquatic reserves, cause erosion or sedimentation in terms set out in s 6.7 of the Biodiversity SEPP.

26. While the site is flood liable, it is not in proximity to wetlands or other riverine ecosystems. As such, I am satisfied that, if there is a flood, the development will not release pollutants that may have an adverse impact on water quality, or on the natural recession of floodwaters, and will not impact recreational uses nor the public access to foreshores, waterways or the like, pursuant to ss 6.8 or 6.9 of the Biodiversity SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

27. Section 4.6(2) of State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority, or the Court on appeal, to consider whether the land on which development is proposed, is contaminated.

28. On the basis of the Detailed Site Investigation prepared by Harwood Environmental Consultants dated January 2024, I accept the site is suitable for the purpose for which development is proposed before the land is used for that purpose.

State Environmental Planning Policy (Sustainable Buildings) 2022

29. The application is accompanied by a BASIX certificate (Cert No. 1773674S dated 19 November 2024) prepared by Manali Rana in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022.

30. An embodied energy report is a part of the BASIX Certificate, such that the Court can be satisfied that the embodied emissions attributable to the proposed development have been quantified in accordance with s 2.1(5) of the Sustainable Buildings SEPP.

Conclusion

31. 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’ decision.

32. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

33. The Court notes that:

1. The Council, Inner West Council, as the relevant consent authority, has approved, under s 38 of the EPA Regulation, the Applicant amending development application No. 2024/0153/1 by relying on the amended plans and other documents set out in Annexure A.

2. Those documents in Annexure B were filed with the Court on 20 December 2024.

Orders

34. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $4,000 within 28 days of these orders.

2. The written request made pursuant to clause 4.6 of the Inner West Local Environmental Plan 2022 in relation to a variation to the Site Coverage standard at clause 4.3C of the Inner West Local Environmental Plan 2022, prepared by Sutherland Planning and dated 7 November 2024, is upheld.

3. The appeal is upheld.

4. Development application 2024/0153/1, as amended, for the alterations and additions to the existing commercial building including subdivision of the site into three (3) Torrens Title lots and construction of dwellings on each lot and associated site works and landscaping at Lot D in deposited Plan 323118 also known as 81a College street, Balmain, is determined by the grant of consent, subject to conditions contained in Annexure A.

…………………..

T Horton

Commissioner of the Court

Annexure A

Annexure B

**********

Amendments

24 December 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), by request of both parties, correction is made to the Orders.

06 January 2025 - Annexures are uploaded to the judgment.

Decision last updated: 06 January 2025