Citywide Developments Pty Limited v Inner West Council

[2019] NSWLEC 1028

Land and Environment Court

New South Wales

Medium Neutral Citation:	Citywide Developments Pty Limited v Inner West Council [2019] NSWLEC 1028
Hearing dates:	Conciliation conference on 13 December 2018
Date of orders:	25 January 2019
Decision date:	25 January 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to dwelling house - 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
Category:	Principal judgment
Parties:	Citywide Developments Pty Limited (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/171864
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal concerning a development application for alterations and additions to the dwelling house at 18 Collins Street, Annandale. The appeal is lodged pursuant to s 8.7 to the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 13 December 2018. I presided over the conciliation conference.

3. After 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 decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I was 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 Court Act). I formed this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties has been 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 2013”).

• The development works do not require any reliance on the party wall for support, and all work is proposed to be carried out on the subject property.

• I am satisfied that consent should be granted notwithstanding the contravention of the standard in cl 4.3A(3)(b) of the LLEP 2013 that requires that the site coverage does not exceed 60% of the site area. The proposal has a site coverage of 65.6%, which represents a 9.4% variation or additional site coverage of 4.95m2 (on a total site area of 88.4m2). It complies with the standard in cl 4.6A(3)(a) of the LLEP 2013 that requires a minimum landscaped area, and provides a landscaped area of 17%. I am satisfied that the written request with respect to the standard in cl 4.3A(3)(b), lodged pursuant to cl 4.6 of the LLEP 2013, adequately establishes sufficient environmental planning grounds that justify the contravention of the site coverage development standard by stating that the variation allows for the provision of additional residential accommodation for small family housing within a proposed building envelope that is consistent within the existing building envelope of the adjoining dwellings. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance and that the proposal increases the amount of landscaping provided on the site. Further, I am satisfied, based on the contents of the request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

5. 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 Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. 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.

7. The Court orders that:

1. The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings:

1. Drawing A1.0 of 14, Survey, Revision AB dated 17.12.2018

2. Drawing A1.1 of 14, Ground and lower floor plan, Revision AB dated 17.12.2018

3. Drawing A1.2 of 14, First floor plan, Revision AB dated 17.12.2018

4. Drawing A1.3 of 14, Roof Plan, Revision AB dated 17.12.2018

5. Drawing A2.1 of 14, North Elevation, Revision AB dated 17.12.2018

6. Drawing A2.2 of 14, South Elevation, Revision AB dated 17.12.2018

7. Drawing A2.3 of 14, East elevation, Revision AB dated 17.12.2018

8. Drawing A3.0 of 14, Section 1, Revision AB dated 17.12.2018

9. Drawing A5.0 of 14, Perspectives 1, Revision AB dated 17.12.2018

10. Drawing A5.1 of 14, Perspectives 2, Revision AB dated 17.12.2018

11. Drawing A5.2 of 14, Perspectives 3, Revision AB dated 17.12.2018

12. Drawing A6.0 of 14, Finishes, Schedules, Revision AB dated 17.12.2018

13. Drawing A7.0 of 14, Concept Hydraulic Plan, Revision AB dated 17.12.2018

14. BASIX Certificate A337234

15. Structural Certificate 1617 of Harrison & Morris dated 14 January 2019

16. ModUrban Clause 4.6 variation for 18 Collins Street Annandale dated December 2018

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $4,000.

3. The Applicant’s written request under clause 4.6 of Leichhardt Local Environmental Plan 2013 seeking a variation of the development control for Landscape Areas for Residential Accommodation in R1 Zones set out in clause 4.3A of the of Leichhardt Local Environmental Plan 2013 is upheld.

4. The appeal is upheld.

5. Development application D/2017/691 seeking part demolition of the dwelling house (rear of the dwelling), alterations and additions to the dwelling house including a kitchen and living area at the lower ground floor level and first floor addition containing bedrooms and an ensuite bathroom is approved subject to the conditions in Annexure A.

……………………….

Commissioner Gray

Annexure A

s34 plans

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Decision last updated: 30 January 2019