Dillon and Savage Architects v Inner West Council

[2019] NSWLEC 1478

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dillon & Savage Architects v Inner West Council [2019] NSWLEC 1478
Hearing dates:	Conciliation conference on 2 September 2019
Date of orders:	04 October 2019
Decision date:	04 October 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   Leave is granted to the Applicant to amend the application to rely on the amended plans and documents listed in Condition 4 of the conditions of consent at Annexure A. (2)   The appeal is upheld. (3)   Development consent is granted to Development Application No. D/2018/69 for the partial demolition of the existing building, removal of trees and alterations and additions to the existing building including basement parking and use as a childcare centre for 80 children, at 393 Darling Street, Balmain, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – change of use to a childcare centre for 80 children – alterations and additions to the existing building – 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
Category:	Principal judgment
Parties:	Dillon & Savage Architects (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) C Campbell (Solicitor) (Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2018/390653
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/2018/69 for the partial demolition of the existing building, removal of trees and alterations and additions to the existing building including basement parking and use as a childcare centre for 80 children (the proposal) at 393 Darling Street, Balmain (the site) by Inner West 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 2 September 2019. 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 cl 5.10 of the Leichhardt Local Environmental Plan 2013 (LEP 2013).

6. The site is zoned B2 pursuant to LEP 2012 and the proposal is a nominate permissible use in the B2 zone. The objectives of the B2 zone, to which regard must be had, are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To ensure that development is appropriately designed to minimise amenity impacts.

• To allow appropriate residential uses to support the vitality of local centres.

• To ensure that uses support the viability of local centres.

• To provide a mixture of compatible land uses.

• To reinforce and enhance the role, function and identity of local centres by encouraging appropriate development to ensure that surrounding development does not detract from the function of local centres.

• To integrate suitable business, office, residential, retail and other development in accessible locations.

7. The site is identified as a local heritage item (“House, including interiors” Item 202, Part 1, Schedule 5, LEP 2013) and it is located within the Iron Cove Heritage Conservation Area (Part 2, Schedule 5, LEP 2013). Pursuant to cl 5.10(4) of LEP 2013, the consent authority must, before granting consent under cl 5.10 in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. Having considered the findings of the Heritage Impact Statement prepared by John Oultram Heritage and Design, dated February 2018, I am satisfied that the amended development will have an acceptable impact upon the identified heritage significance of the site and the area, based on the amendments made to the development proposal agreed to during the conciliation conference and reflected in the amended plans the subject of the development consent.

Orders

8. The orders of the Court are:

1. Leave is granted to the Applicant to amend the application to rely on the amended plans and documents listed in Condition 4 of the conditions of consent at Annexure A.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. D/2018/69 for the partial demolition of the existing building, removal of trees and alterations and additions to the existing building including basement parking and use as a childcare centre for 80 children, at 393 Darling Street, Balmain, subject to the conditions of consent at Annexure A.

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Susan O’Neill

Commissioner of the Court

Annexure A (205 KB, pdf)

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