Derums v Inner West Council

[2024] NSWLEC 1647

Land and Environment Court

New South Wales

Medium Neutral Citation:

Derums v Inner West Council [2024] NSWLEC 1647

Hearing dates:

Conciliation Conference 4 October 2024

Date of orders:

16 October 2024

Decision date:

16 October 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court Orders:

(1) The Appeal is upheld.

(2) Modification Application No. MOD/2023/0249 is approved and Development Consent No. D/2002/623 is modified in the terms in Annexure A.

(3) Development Consent No. D/2002/623 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – residential development – modification application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.55, 8.9

Land and Environment Court Act 1979, s 34

Environmental Planning & Assessment Regulation 2021, s 113

Inner West Local Environmental Plan 2022, cl 6.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.21

Texts Cited:

Inner West Community Engagement Strategy 2022-2024

Category:

Principal judgment

Parties:

Yanis Derums (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
T Sattler (Solicitor)(Applicant)
M Pearce (Respondent)

Solicitors:
Sattler and Associates (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/121517

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of a Modification Application No. Mod/2023/0249 pursuant to s 4.55(1A) of the EPA Act seeking to modify the approved development under D/2002/623 (as amended) for alterations and additions to an existing dwelling including extension of the first floor terrace, second floor level extension and new skylight. The modification application seeks to amend Condition 18A to allow for installation of an on-site detention (OSD) system and drainage to kerb and gutter in lieu of connection to Council’s drainage system directly via a new kerb inlet pit and extension of the drainage pipe within Johnston Street (the Proposed Modification) at 7A Johnston Street, Balmain East legally described as Lot 1 in Deposited Plan 578877 (the Site).

2. No design changes are proposed to the approved development.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 4 October 2024. I presided over the conciliation conference.

4. 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. This decision involved the Court upholding the appeal and approving the modification to the development consent.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to approve the modification to a development consent.

7. The parties agree that all Contentions raised in the Statement of Facts and Contentions filed on 20 May 2024 (SOFAC) have been resolved by the preparation of the:

1. amended stormwater plans referred to in the approved plan Table at Paragraph 2 of the s 34 agreement between the parties, and;

2. agreed conditions of consent.

8. 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 to be the terms of s 4.55 of the EPA Act to modify a consent and the parties explained how the jurisdictional prerequisites have been satisfied.

9. The Applicant is one of three registered owners of the land and all have provided consent to the Modification Application as evidenced in the Class 1 Application.

10. Section 4.55(1A) of the EPA Act provides for modifications involving minimal environmental impact. The Applicant relies on the Statement of Environmental Effects prepared by Boston Blyth Flemming dated 5 December 2022 filed with the Class 1 Application which addresses the jurisdictional prerequisites set out in s 4.55(1A) of the EPA Act at pages 3 to 5.

11. I am satisfied that the Proposed Modification has minimal environmental impact for the reasons set out at [14] below.

12. The Proposed Modification is substantially the same as the consent as originally granted because the modification is for amendment of existing condition of consent 18A and as amended the installation of an OSD system. The existing approved dwelling otherwise remains the same as now constructed in accordance with its approval.

13. In accordance with the Council’s Community Engagement Strategy 2022-24 (adopted December 2022), the Applicant provided amended plans with reduced impact which therefore the Modification Application as finally sought by the Applicant did not require notification.

14. Clause 6.3 of the Inner West Local Environmental Plan 2022 regarding stormwater management applies to the granting of development consent however the parties explain that the amended stormwater plans that include the OSD system, specifically drawing 2019-016-H1 Rev D shows a total site stormwater discharge of 12 litres per second which complies with Council’s controls. With the addition of the OSD the potential stormwater discharge from the Site avoids any significant adverse impact brought about by stormwater runoff to adjoining properties, the public domain, native bushland and receiving waters. Council and the Court can be satisfied that the development minimises and mitigates any potential impact.

15. The Site is located in the Sydney Harbour Catchment. Sections 6.6 (Water quality and quantity) and 6.21 (Stormwater management) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) apply to the granting of development consent. The parties explain that the relevant clauses from Chapter 10 of the SEPP Biodiversity and Conservation were assessed when consent was granted for the original consent and in any event, that Chapter was repealed in or around November 2022.

16. Other provisions of the SEPP Biodiversity and Conservation relating to water quality and quantity (cl 6.6) and stormwater management (cl 6.21) would be satisfied by the incorporation of On-site Detention of stormwater within the development site and the development ensures effective water quality entering a natural water body (cl 6.6(2)(a) SEPP Biodiversity and Conservation) and the water flow into the natural body will be minimised through the OSD system (cl 6.6(2)(b) SEPP Biodiversity and Conservation).

17. The development is not prohibited on the land in regulated catchment, as it will not cause untreated stormwater to be disposed of into a natural body (cl 6.21(3) SEPP Biodiversity and Conservation).

18. 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 I have set out in this judgment.

19. 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:

20. The Court notes:

1. lnner West Council as the relevant consent authority, has agreed, pursuant to s 113 of the Environmental Planning & Assessment Regulation 2021, to the applicant amending Modification application MOD/2023/0249 to rely upon the following plans:

Drawing	Date	Prepared by
Stormwater drainage site plan 2019-016-H1 Rev D	26.9.24	Burgess, Arnott & Grava Pty Ltd, consulting structural, civil & hydraulic engineers
Stormwater drainage OSD details sheet 2019-016-H2 Rev D	26.9.24	Burgess, Arnott & Grava Pty Ltd, consulting structural, civil & hydraulic engineers
Stormwater drainage south-east elevation & details 2019-016—H3 Rev A	26.9.24	Burgess, Arnott & Grava Pty Ltd, consulting structural, civil & hydraulic engineers

Orders:

21. The Court orders:

1. The Appeal is upheld.

2. Modification Application No. MOD/2023/0249 is approved and Development Consent No. D/2002/623 is modified in the terms in Annexure A.

3. Development Consent No. D/2002/623 as modified by the Court is Annexure B.

……………………….

E Espinosa

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 16 October 2024