Chen v Inner West Council

[2024] NSWLEC 1399

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chen v Inner West Council [2024] NSWLEC 1399

Hearing dates:

Conciliation Conference 26 June 2024

Date of orders:

12 July 2024

Decision date:

12 July 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

1) The Applicant is granted leave to rely on the Amended Development Application.

2) The appeal is upheld.

3) Development Application No. DA/2023/0533 as amended, for the demolition of existing dwelling and construction of a two (2) storey dwelling and associated landscaping at 4A Datchett Street, Balmain East, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – heritage – stormwater – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, s 38

Inner West Local Environmental Plan 2022, cll 2.7, 4.3, 4.3C, 4.4, 5.10, 6.1, 6.2, 6.3

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.6

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Zhe Chen (First Applicant)
Wei Wang (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
R Dunstan (Solicitor)(Respondent)

Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/346892

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application No. DA/2023/0533 for demolition of the existing single storey brick dwelling and proposal for a new two storey dwelling with garage below (the Proposed Development) at 4A Datchett Street, Balmain East legally described as Lot 2 in Deposited Plan 10579 (the Site).

2. The site is located in Balmain East Heritage Conservation Area pursuant to Schedule 5 – Part 2 Heritage conservation areas of the IWLEP. The existing dwelling is a contributory dwelling in the Balmain East Heritage Conservation Area.

3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 26 June 2024. I presided over the conciliation conference.

4. The proceedings commenced on site and the Court heard from a number of neighbouring objectors.

5. At the conciliation conference, as a result of design changes and the provision of further information by the Applicant, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. The changes proposed by the Applicant include (but are not limited to) the following:

1. Reduction of the eave height of the front verandah to 2.4m;

2. Reduction of the overall height of the dwelling;

3. Deletion of subterranean garage;

4. Change of window shape to windows 6 and 7 on first floor;

5. Deletion of roof terrace; and

6. Introduction of privacy screens on windows and balcony areas.

7. The amendments have resolved the Respondent’s contentions set out in the Statement of Facts and Contentions filed 24 November 2023 including Contention 4 which deals with solar access and privacy impacts to adjoining properties. In that regard, I note that the parties’ town planning and heritage experts prepared a Joint Expert Report filed 25 June 2024 and at p 10 state as follows:

“The amended plans are accompanied by sun eye diagrams which confirm that the DCP control is met for the proposal and adjoining properties. In relation to 4B, we confirm that living spaces are located at the rear of the property and therefore the proposal will not shadow these areas.

The roof terrace has been deleted and the privacy impacts of the proposal are agreed to be acceptable.”

8. 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. 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.

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

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement from which I summarise below.

11. The Applicants are the registered proprietors of the Site.

12. The Site is located in the R1 General Residential zone pursuant to the Inner West Local Environmental Plan 2022 (IWLEP) and development for the purposes of a residential dwelling is permitted with consent in the R1 General Residential zone.

13. Consent is sought to demolish the existing dwelling in accordance with cl 2.7 of the IWLEP.

14. The Site is not identified on any Height of Buildings Map pursuant to cl 4.3 of the IWLEP.

15. For the purposes of the minimum landscaped area development standard in cl 4.3C of the IWLEP, the Site is identified as being within ‘Area 1’ and as the Site has a total site area is 207.2m², cl 4.3C(3)(a)(i) of the IWLEP requires that for Sites that have a total site area of 235m² or less:

1. the minimum landscaped area must be 15%; and

2. the site coverage of the Proposed Development must not exceed 60%.

16. The Proposed Development complies with these development standards because it provides a site coverage of 59.6% and a total landscaped area of 22.2% for hard landscaping and 32.9% for soft landscaping as depicted in Drawing no. 80-01B – Area Calculations: GFA (Rev B) dated 4 June 2024.

17. A floor space ratio development standard of 0.9:1 applies to the Site pursuant to cl 4.4 of the IWLEP and the Proposed Development complies with this development standard because the total gross floor area of 183.7 square metres results in an FSR of 0.9:1 as depicted in Drawing no. 80-01B – Area Calculations: GFA (Rev B) dated 4 June 2024.

18. Clause 5.10 of the IWLEP provides that prior to granting consent, a consent authority must consider the effect of the proposed development on the heritage significance in respect of a heritage item or heritage conservation area.

19. The existing dwelling on the Site is not identified as a heritage item but is identified as a contributory item, being located within the Balmain East Heritage Conservation Area (BEHCA) and adjoins Datchett Street which is identified as a heritage item along with numerous heritage items to the north, north-east and north-west.

20. The parties agree that the existing dwelling is suitable for demolition and its retention is impractical and uneconomical and explain that the status of the existing dwelling as dilapidated is confirmed in the Existing Condition Report prepared by Rebel Engineering dated 14 May 2024 (Condition Report) which confirms the following the finding of five major defects, as follows:

1. Inconsistent foundation support resulting in the observed wall cracking and settlement;

2. Inadequate subfloor clearance to the timber floor framing resulting in the observed rising damp, mould, musty smell and flaking paint;

3. Brickwork requiring replacement including lintels above window openings and the main entry stair structure;

4. Reconstruction of the existing timber roof framing including new terracotta roof tiles

5. External wall cladding to the rear skillion roof extension constructed from asbestos that is a health and safety issue.

21. The Condition Report confirms that the building has reached its use by date and that the rectification and repair of the building, requiring approximately 70-80% of the existing structure being demolished and reconstructed would be impractical and uneconomical given the extent of observed and documented defects.

22. The parties agree that the proposed materials and finishes, and design of the new dwelling are respectful to the BEHCA.

23. The Site is identified as being affected by acid sulfate soils Class 5 on the Acid Sulfate Soils Map pursuant to cl 6.1 of the IWLEP. Whilst the Site is within 500 metres of an adjacent Class 4 land, the Geotechnical Report prepared by White Geotechnical Group dated 20 March 2023 and filed with the Class 1 Application at Tab 10 (Geotechnical Report), confirms that the Proposed Development is unlikely to lower the water table on the adjacent class land below 1 metre Australian Height Datum and accordingly an acid sulfate management plan is not required.

24. The objectors expressed concern regarding the proposed earthworks resulting from the proposed excavation for the Proposed Development and the parties explain that pursuant to cl 6.2 of the IWLEP the matters that the consent authority is required to consider before granted development consent for earthworks have been considered in reaching the agreement. The parties rely on the Geotechnical Report which provides details for adequate measures during the excavation period to mitigate the impact on neighbouring land uses and structures, together with the detailed stormwater management plan prepared by Stellen Consulting filed with the Class 1 Application at Tab 5 and say that the extent of proposed earthworks is unlikely to result in a significant or adverse disruption of drainage patterns at the Site or the stability of neighbouring land.

25. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) provides that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. I am satisfied that the Site is currently occupied by a dwelling house and historically has been used for residential purposes since the existing dwelling was constructed in the late 1920s because the Heritage Impact Statement prepared by Anne Warr Heritage Consulting dated 22 May 2023 and Heritage Assessment prepared by Weir Phillips dated May 2023 filed with the Class 1 Application at Tabs 7 and 8, confirm the historical use of the Site being for residential purposes. This is reiterated in the Statement of Environmental Effects (SEE) prepared by Planning Ingenuity (Tab 2 Class 1 Application). Additionally, the Respondent has made enquiries as to whether the Site is identified on any contamination register and advises the Court that the Site is not identified on any such register. Accordingly, for the purposes of s 4.6 of the Resilience and Hazards SEPP, I am satisfied that the Site is suitable for continued use for residential purposes.

26. The Site is located within the Sydney Harbour Catchment. In accordance with s 6.6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP), a consent authority must consider the impacts of the Proposed Development on the water quality and quantity of the Site including impacts from the Proposed Development on groundwater and stormwater of land that is identified within the Sydney Harbour Catchment Map. Relevantly, s 6.6(2) of the Biodiversity and Conservation SEPP provides as follows:

(2)  Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied the development ensures—

(a)  the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and

(b)  the impact on water flow in a natural waterbody will be minimised.

27. The SEE at p 17, confirms that the Proposed Development will not have any impacts to the Sydney Harbour Catchment or surrounding foreshore areas, will appropriately manage the water quality and runoff, and will be setback considerably from any areas of sensitivity.

28. Clause 6.3 of the IWLEP also deals with stormwater management and provides that development consent must not be granted unless the consent authority is satisfied that the development:

(a)  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

(b)  includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)  avoids a significant adverse impact of stormwater runoff on adjoining properties, native bushland and receiving waters, or if an impact cannot be reasonably avoided, minimises and mitigates the impact.

29. Part E Water of the Leichhardt Development Control Plan 2013 (LDCP) has objectives and controls that are consistent with the requirements of s 6.6 of the Biodiversity and Conservation SEPP. The relevant objectives for sustainable water and risk management are set out in Section 1, objectives O1 to 08. Thereafter are the controls which are imposed in order to achieve these objectives.

30. The Applicant relies on a Water Management Statement by Carter Williamson filed with the Class 1 Application at Tab 12 in compliance with clause E1.1.1 Water Management Statement of the LDCP, and which confirms that the Proposed Development is accompanied by a BASIX certificate which outlines the water response together with the detailed stormwater management plan contained in the Stormwater Plan prepared by Stellen Consulting, found at Tab 5 of Class 1 Application. The purpose of the Stormwater Plan is to ensure that the stormwater and runoff is dealt with appropriately. The Proposed Development provides approximately double the soft landscaped area as required by the development and as a result this maximises the water permeable surfaces and infiltration on the Site.

31. The stormwater design provides for rainwater retention and re-use for laundry, toilet flushing and irrigation. The stormwater design has been conditioned to comply with Council’s technical requirements so as to minimise all off-site impacts.

32. Additionally, the parties are satisfied that an Integrated Water Management Cycle Plan pursuant to clause E1.1.2 of the Leichardt Development Control Plan is not required as it does not apply to the Proposed Development. The Applicant has provided update BASIX Certificate and stamped plans and NatHERS Certificate.

33. The Applicant has provided Amended Stormwater Plans prepared by Stellen Consulting which confirm that the Proposed Development includes a rainwater tank of 5000L complying with control C3 in E1.2.3. The Amended Stormwater Plans include a notation whereby the rainwater tank must meet and be installed in accordance with the requirements of all applicable regulatory authorities and must connect to all new and/or upgraded toilet cisterns, laundry washing machine, external taps, and irrigation systems. The stormwater design also includes trash screens on the relevant stormwater pits as well as a first flush device and filter as shown on the plans.

34. The basement is to be fully tanked as noted on the stormwater plan “Pipe Layout – Lower Ground” Drawing DR-001 Rev 2 and as required by the conditions of consent at Annexure A resulting in groundwater being unaffected by the basement.

35. Condition 22 of the conditions of consent at Annexure A specifies detailed design requirements that are to be implemented in the design and construction of the stormwater system to ensure that Council’s objectives for sustainable water management and conservation are achieved and to ensure that any stormwater leaving the site will not have an unacceptable impact of the Sydney Harbour Catchment including aquatic ecology.

36. The water management proposed meets the relevant controls in the LDCP and in turn meet the objectives for management of stormwater run-off from the site in terms of stormwater quantity and quality.

37. For these reasons above, the Parties, and the Court, are satisfied that the Proposed Development complies with s 6.6 of the Biodiversity and Conservation SEPP and cl 6.3 of the IWLEP.

38. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out above.

39. 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.

Notations:

40. The Court notes:

1. The Respondent, Inner West Council, as the relevant consent authority, approves, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 the amendment of development application No. DA/2023/0533 in accordance with the following amended plans and documents:

TAB	DOCUMENT	DATE
1	Amended Architectural Plans, prepared by Carter Wiliamson • 10-03 C – Basement Plan (Rev C) – 4 June 2024 • 10-04 C – Ground Plan (Rev C) – 4 June 2024 • 10-05 C – First Floor Plan (Rev C) – 4 June 2024 • 10-06 C – Roof Plan (Rev C) – 4 June 2024 • 20-03 D – West Elevation (Rev D) – 13 June 2024 • 20-04 D – South Elevation (Rev D) – 13 June 2024 • 20-05 C – East Elevation (Rev C) – 4 June 2024 • 20-06 D – North Elevation (Rev D) – 13 June 2024 • 30-03 D – Long Section (Rev D) – 13 June 2024 • 30-04 C – Short Sections (Rev C) – 4 June 2024 • 30-05 B – Section: Detail Window Screen – 21 May 2024 • 30-06 A – Section: Detail Balcony Screen – 21 May 2024 • 80-01B – Area Calculations: GFA (Rev B)- 4 June 2024 • 90-01B – Material and Finishes Schedule (Rev B) – 18 June 2024 • 20-09 H – Window and Door Schedule (Rev H) – 18 June 2024 • 20-10 D – Window and Door Schedule (Rev D) – 18 June 2024	Various Dates up to 18 June 2024
2	Solar Analysis Plans, prepared by Carter Williamson • 70-13D - Elevational Shadows: Winter (Rev D) • 70-20C - Sun Eye Diagrams: Winter Solstice (Rev C) • 70-21C - Sun Eye Diagrams: Winter Solstice (Rev C) • 70-22C - Sun Eye Diagrams: Winter Solstice (Rev C) • 70-23C - Sun Eye Diagrams: Equinox (Rev C) • 70-24C - Sun Eye Diagrams: Equinox (Rev C) • 70.25C - Sun Eye Diagrams: Equinox (Rev C) • 70-26C - Sun Eye Diagrams: Summer Solstice (Rev C) • 70-27C- Sun Eye Diagrams: Summer Solstice (Rev C) • 70-28C - Sun Eye Diagrams: Summer Solstice (Rev C)	13 June 2024
3	Arboricultural Impact Appraisal and Method Statement, prepared by EziGrow	5 March 2024
4	Stormwater Plans, prepared by Stellen Consulting • DR-000, Legend • DR-001, Pipe Layout- Lower Ground • DR-002, Pipe Layout- Ground • DR-003, Pipe Layout- First Floor • DR-004, Roof Layout • DR-005, Details	13 May 2024
5	Existing Condition Report prepared by Rebel Engineering Statement with Regard to NSWLEC Planning Principle 66 by Weir Phillips	14 May 2024 21 June 2024
6	BASIX Certificate No. 1380441S_02 BASIX Commitments and BASIX stamped plans NatHERS Certificate No. #HR-RYKIVE-01	20 June 2024

(‘Amended Development Application’)

2. The Amended Development Application is not required to be lodged on the NSW Planning Portals pursuant to Section 38(4) of the Environmental Planning and Assessment Regulation 2021.

3. The Applicant filed the Amended Development Application with the Court on the same date as this agreement.

Orders:

41. The Court orders:

1. The Applicant is granted leave to rely on the Amended Development Application.

2. The appeal is upheld.

3. Development Application No. DA/2023/0533 as amended, for the demolition of existing dwelling and construction of a two (2) storey dwelling and associated landscaping at 4A Datchett Street, Balmain East, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

E Espinosa

Commissioner of the Court 

Annexure A

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Decision last updated: 12 July 2024