Davis v Inner West Council

[2021] NSWLEC 1452

Land and Environment Court

New South Wales

Medium Neutral Citation:

Davis v Inner West Council [2021] NSWLEC 1452

Hearing dates:

Conciliation conference on 28, 29 July 2021

Date of orders:

6 August 2021

Decision date:

06 August 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders:

(1) The appeal is upheld

(2) Development Application No. DA2020/0947 lodged on 3 November 2020, as amended, to carry out alterations and additions to the existing semi-detached dwelling at 57 Phillip Street, Birchgrove is approved subject to the conditions in Annexure ‘A’ to this agreement.

(3) Each party to pay their own costs of the proceedings.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to existing semi – detached dwelling – amended plans – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, ss 34, 34AA

Leichhardt Local Environmental Plan 2013, cll 2.3, 5.10, 6.1

State Environmental Planning Policy (Building sustainability Index: BASIX) 2004 cl 6

State Environmental Planning Policy No 55—Remediation of Land cl 7

Category:

Principal judgment

Parties:

Rory Steinle Davis (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicant)
G Christmas (Solicitor) (Respondent)

Solicitors:
D G Briggs and Associates (Applicant)
Apex Law (Respondent)

File Number(s):

2021/59582

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s refusal of their development application DA/2020/0947. As amended the development application seeks consent for alterations and additions to the existing semi-detached dwelling at 57 Phillip Street, Birchgrove (Lot 1 DP 555150). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

2. The subject property was the subject of substantial storm damage on 9 February 2020. These proceedings were heard concurrently with proceedings number 2021/103171 which seeks the issue of a building information certificate for the site.

3. The Court arranged a conciliation conference under s 34AA(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on the 28 and 29 July 2021. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 6 April 2021, the matter was conducted by Microsoft Teams. As part of the conciliation conference the Court heard evidence from members of the public in relation to the proposed development. In determining the development application, I have given consideration to these oral submissions, along with the written submission received during the assessment of the application.

4. At 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, namely leave to be granted to amended plans and the grant of consent to the development application subject to conditions of consent annexed to this judgment. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 29 July 2021.

5. As required by cl 55 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) the Applicant has lodged the amended plans arising from the conciliation process on the NSW planning portal. Further, the Respondent has given their agreement to the amendment of the development application. Further, the Court has allowed the applicant to file an amended application for development consent pursuant to s 8.15(3) of the EPA Act. My assessment and determination are of the development application as amended.

6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. In accordance with the requirements of cl 49(1) of the EP&A Regulation consent for the development application has been provided by the owners of the land; 

2. The application was notified in accordance with the relevant development control plan and I have considered the submissions in determining the development application; 

3. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP-55), I accept that the likelihood of contamination is low;

4. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004;

5. Pursuant to Leichardt Local Environmental Plan 2013 (LEP 2013), the subject site is zoned R1 General Residential. Development for the purpose of semi-detached dwellings is permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone;

6. The development is compliant with the height, floor space ratio and landscape area development standards in LEP 2013.

7. In determining the development application, I have considered the effect of the proposed development on the heritage significance of the Town of Waterview Heritage Conservation Area. I am satisfied that the development, as amended, will not have a detrimental impact: cl 5.10(4) of LEP 2013.

8. The subject site is mapped as Class 5 on the Acid Sulfate Soils Map. I am satisfied that the works are not within 500m of another mapped class nor will the works lower the water table: cl 6.1 of LEP 2013.

7. 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.

8. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld.

2. Development Application No. DA2020/0947 lodged on 3 November 2020, as amended, to carry out alterations and additions to the existing semi-detached dwelling at 57 Phillip Street, Birchgrove is approved subject to the conditions in Annexure ‘A’ to this agreement.

3. Each party to pay their own costs of the proceedings.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (211229, pdf)

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Decision last updated: 06 August 2021