David Scott Design v Inner West Council

[2020] NSWLEC 1355

Land and Environment Court

New South Wales

Medium Neutral Citation:

David Scott Design v Inner West Council [2020] NSWLEC 1355

Hearing dates:

Conciliation conference on 3 August 2020

Date of orders:

11 August 2020

Decision date:

11 August 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders:

(1) The Applicant is granted leave to amend Development Application No. D/2019/237 to rely on the amended plans and documents listed in condition 3 of the conditions of consent at Annexure A.

(2) The appeal is upheld.

(3) Development Application No. D/2019/237 for the demolition of the rear structure and alterations and additions to an existing dwelling house, new garage and associated works at 356 Annandale Street, Annandale, is approved, subject to the conditions of consent 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

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

David Scott Design (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Kondilios (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Hall & Wilcox (Applicant)
Inner West Council (Respondent)

File Number(s):

2019/385183

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/2019/237 for the demolition of the rear structure and alterations and additions to an existing dwelling house, new garage and associated works (the proposal) at 356 Annandale Street, Annandale (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 has been held on 3 August 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 cll 5.10(4) and 6.4(3) of the Leichhardt Local Environmental Plan 2013 (LEP 2013).

Consideration

6. The site is zoned R1 General Residential pursuant to LEP 2013 and the proposal is permissible with consent. 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.

7. The site is located within the Annandale Heritage Conservation Area (Annandale HCA). Clause 5.10(4) of LEP 2013 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposed development on the heritage significance of the area concerned before granting consent under cl 5.10 in respect of a heritage conservation area. I have considered the effect of the proposal on the heritage significance of the Annandale HCA and I am satisfied that the amendments made to the proposal result in a sympathetic addition to the dwelling house and that the proposal will not impact on the contribution made by the dwelling house to the collective heritage significance of the Annandale HCA.

8. Clause 6.4 of LEP 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 achieves the following, at subcl (3), before granting consent to the development:

6.4 Stormwater management

…

(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 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.

9. The Council submitted that the amendments made to the proposal and the further information provided by the applicant regarding the stormwater design satisfies the requirements of cl 6.4 of LEP 2013 and the contention raised in relation to the disposal of stormwater on the site, because the proposal suitably manages stormwater on the site in accordance with the requirements of Leichhardt Development Control Plan 2013 at Part E.

Orders

10. The orders of the Court are:

1. The Applicant is granted leave to amend Development Application No. D/2019/237 to rely on the amended plans and documents listed in condition 3 of the conditions of consent at Annexure A.

2. The appeal is upheld.

3. Development Application No. D/2019/237 for the demolition of the rear structure and alterations and additions to an existing dwelling house, new garage and associated works at 356 Annandale Street, Annandale, is approved, subject to the conditions of consent at Annexure A.

_____________________

Susan O’Neill

Commissioner of the Court

Annexure A (242946, pdf)

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Decision last updated: 11 August 2020