Elias v Inner West Council

[2024] NSWLEC 1135

Land and Environment Court

New South Wales

Medium Neutral Citation:

Elias v Inner West Council [2024] NSWLEC 1135

Hearing dates:

Conciliation Conference 7 March 2024

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA/2023/0477, as amended, for the construction of two x two-storey semi-detached dwellings (each on their own lot) including car parking, basement, pool, and associated landscaping and site works at 3 Emmerick Street, Lilyfield NSW 2040, subject to the conditions in the Annexure marked A.

Catchwords:

APPEAL – Development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.11, 8.14

Heritage Act 1977, s 146

Land and Environment Court Act 1979, ss 17, 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

Inner West Local Environmental Plan 2012, cll 4.3, 4.4, 6.1, 6.2, 6.3, 6.8

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Charbel Elias (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
J Marsland (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s):

2023/260384

Publication restriction:

Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the Respondent’s deemed refusal of the Applicant’s Development Application (DA/2023/0477) (Development Application) seeking consent for the construction of two x two storey semi-detached dwellings (each on their own lot) including car parking, basement, pool and associated landscaping and site works on land identified as Lot 1 in Deposited Plan 982636, known as 3 Emmerick Street, Lilyfield, NSW (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Development Application

3. The Subject Land benefits from an existing development consent (DA/2022/0943) for the demolition of existing structures on the Subject Land and Torrens title subdivision from one lot into two lots (Existing Consent). Pursuant to the Existing Consent, the Subject Land will be subdivided into Lot A and Lot B, each having a site area of 240.30m².

4. The Development Application was lodged with the respondent on 19 June 2023.

5. On 16 August 2023, the proceedings were commenced, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 7 March 2024. I presided over the conciliation conference.

7. Amended plans and documents were filed with the Court on 7 March 2024 (Amended Development Application) cited at [39]. The amendments can be summarised as follows:

1. reducing the building height at the ground and first floors;

2. further increasing the northern side setback;

3. updating the architectural, landscape and stormwater plans;

4. providing an updated geotechnical report; and

5. providing updated BASIX and NaTHERS Certificates.

8. 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. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

9. 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.

Jurisdictional considerations

10. 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 form this state of satisfaction for the reasons that follow.

Owner’s consent

11. The Applicant is one part owner of the Subject Land. The other owner of the Subject Land, Mr Haowei Sun, provided landowner’s consent to the Development Application on 24 May 2023 as per the letter contained in tab 12 of the Class 1 Application.

Inner West Local Environmental Plan 2022

12. The Subject Land is zoned R1 General Residential under the Inner West Local Environmental Plan 2012 (IWLEP). Accordingly, semi-detached dwellings are permitted with consent in the R1 zone. I have had regard to the zone objectives which are extracted below:

• To provide for the housing needs of the community.

• To provide 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 provide residential development that maintains the character of built and natural features in the surrounding area.

13. The parties believe that the Amended Development Application is consistent with these objectives.

14. The parties agree that cl 4.3 (height of buildings) does not apply to the Subject Land as there is no prescribed height of building control for the Subject Land under the IWLEP.

15. The parties agree that cl 4.3C (landscaped area for residential accommodation in Zone R1) applies to the Subject Land as the Subject Land is identified in “Area 1” on the Key Sites Map (Sheet KYS_004) in accordance with cl 4.3C(2). Clause 4.3C(3)(a)(ii) requires that the landscaped area is to be at least 20% of the site area (for lot sizes larger than 235m²) and cl 4.3C(3)(b) requires that the site coverage does not exceed 60% of the site area.

16. Lot A has a proposed landscaped area of 54.57m² or 22.71% and site coverage of 138.08m² or 57.46%. Lot B has a proposed landscape area of 50.50m² or 21.02% and site coverage of 137.09m² or 57.05%. Therefore, the parties agree that both Lot A and Lot B are compliant with cl 4.3C of the IWLEP.

17. Pursuant to cl 4.4(2) of the IWLEP, a maximum floor space ratio (FSR) development standard of 0.8:1 applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.

18. Pursuant to cl 6.1 of the IWLEP, development consent is required for the carrying out of specified works on land shown on the Acid Sulfate Soils Map. The parties agree that the Subject Land is mapped as “Class 5” on the Acid Sulfate Soils map (Sheet ASS_04), however, no works are proposed below 5m AHD and the water table is not likely to be lowered below 1 metre AHD. Therefore, the parties agree that cl 6.1 does not apply to the Amended Development Application.

19. Pursuant to cl 6.2(2) of the IWLEP, development consent is required for earthworks unless certain exemptions apply. The parties agree that cl 6.2 applies to the Amended Development Application. Pursuant to cl 6.2(3), in deciding whether to grant development consent for earthworks, the consent authority must consider the following matters:

1. the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

2. the effect of the development on the likely future use or redevelopment of the land,

3. the quality of the fill or the soil to be excavated, or both,

4. the effect of the development on the existing and likely amenity of adjoining properties,

5. the source of any fill material and the destination of any excavated material,

6. the likelihood of disturbing relics, and

7. the proximity to and potential for adverse impact on any watercourse, drinking water catchment or environmentally sensitive area.

20. The parties agree that the Amended Development Application can be approved having regard to the matters set out in cl 6.2(3) above for the following reasons:

1. The Amended Development Application is unlikely to disrupt or detrimentally affect existing drainage patterns and soil stability in the locality having regard to the submitted stormwater plans and geotechnical report. Further, an additional structural and geotechnical report is required pursuant to Condition 24 of the Agreed Conditions.

2. The effect of the proposed development can be considered having regard to the nature of the development proposed, the documents that comprise the Amended Development Application, and the Agreed Conditions.

3. The parties agree that the additional structural and geotechnical report required pursuant to Condition 24 of the Agreed Conditions can be regarded in the consideration of the quality of the soil to be excavated from the Subject Land. For completeness, I also note that the Geotechnical Investigation Report prepared by Nepean Geotechnics dated 1 November 2023 (Geotechnical Report) (forming part of the Amended Development Application) relevantly considers the quality of the soil to be excavated from the Subject Land.

4. The effect of the proposed development on the existing and likely amenity of adjoining properties has been considered and addressed in Condition 31 and the requirements listed on page 20 of the Agreed Conditions.

5. Condition 11 of the Agreed Conditions requires a waste management plan to be prepared prior to the commencement of any works and there are asbestos removal requirements on page 22 of the Agreed Conditions.

6. The parties agree that given the historical use of the Subject Land, the discovery of relics is unlikely but would be governed by s 146 of the Heritage Act 1977 if required.

7. Given the location of the Subject Land is in a well developed residential area, there is no potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

21. Having regard to the above, I am satisfied that the matters listed in cl 6.2(3) of the IWLEP have been considered in the determination of the Amended Development Application.

22. Pursuant to cl 6.3 of the IWLEP, development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

1. 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

2. includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

3. avoids a significant adverse impact of stormwater runoff on adjoining properties, native bushland and receiving waters, or if an impact cannot reasonably be avoided, minimises and mitigates the impact.

23. The parties agree that the matters listed in cl 6.3(3) of the WLEP are satisfied for the following reasons:

1. The Amended Development Application is supported by landscape plans which are compliant with the overall area for landscaping. They show subsoil drainage to lawn and garden beds. Rainwater tanks and filtration devices are provided in the stormwater plans.

2. Rainwater tanks for water reuse are provided in the stormwater plans.

3. As a result of the proposed stormwater drainage infrastructure including rainwater tanks, filtration devices and connection to Council’s stormwater system on Emmerick Street, no significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters will occur.

24. Having regard to the above, I am satisfied of the matters listed in cl 6.3(3) of the IWLEP.

25. The parties agree that cl 6.8 of the IWLEP applies to the Subject Land as the Subject Land is located within the ANEF 25-30 contours and involves the erection of new buildings. The Amended Development Application is accompanied by an Aircraft Noise Assessment prepared by Acouras Consultancy dated 23 May 2023 (Noise Assessment) which provides acoustic recommendations regarding construction materials and glazing.

26. Having regard to the Noise Assessment and Agreed Conditions, I have considered the matters set out in cl 6.8(3)(a) and (b) and am satisfied of the requirement set out in cl 6.8(3)(c).

State Environmental Planning Policy (Resilience and Hazards) 2021

27. I accept the parties’ submission that the requirements of cl 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events and the fact that the Geotechnical Report does not identify any issues of concern.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

28. The Amended Development Application is accompanied by a BASIX certificate (Cert No. 139542M_02, dated 28 February 2024) prepared by Greenworld Architectural Drafting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) and the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). For completeness, I note that State Environmental Planning Policy (Sustainable Buildings) 2022 does not apply to a development application submitted but not finally determined before 1 October 2023 and the provisions of SEPP BASIX continue to apply to the Amended Development Application.

Leichhardt Development Control Plan 2013

29. I note that the parties have considered the Leichhardt Development Control Plan 2013 (LDCP) in relation to the Amended Development Application and are satisfied that the Amended Development Application is acceptable and can be granted subject to conditions.

30. For the purposes of s 4.15(1)(a)(iii) of the EPA Act, I confirm that I have considered the relevant provisions of the LDCP as they relate to the Amended Development Application.

Remaining matters in s 4.15(1) of the EPA Act

31. The matters set out in s 4.15(1)(a)(i), (iii), (b), (c), and (e) have been considered above.

32. In relation to s 4.15(1)(a)(ii), the parties have raised the proposed Remediation of Land State Environmental Planning Policy (Proposed Remediation SEPP) (draft Explanation of Intended Effect publicly exhibited between 31 January 2018 and 13 April 2018) and the Draft Environment State Environmental Planning Policy (Proposed Environment SEPP) (publicly exhibited between 31 October 2017 to 31 January 2018) as being a relevant consideration under s 4.15(ii) of the EPA Act.

33. I have considered the Proposed Remediation SEPP and Proposed Environment SEPP, to the extent they are relevant to the Amended Development Application, in accordance with s 4.15(1)(ii).

34. In relation to s 4.15(1)(d) and (e), the Development Application, as lodged, was notified between 15 November and 6 December 2022. Four written submissions objecting to the proposed development were received in response to the notification. One of the objectors addressed the Court at the on-site view associated with the conciliation conference and the Court visited this objector’s property.

35. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

36. The parties agree that the Amended Development Application did not require re-notification as the environmental impacts of the amendments will be the same or lesser than the original proposal and that the impacts on the owners and occupiers of adjoining land will not be detrimentally affected in any manner described in the relevant section of the Respondent’s Community Participation Plan.

Conclusion

37. 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.

38. 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.

39. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending its Development Application in accordance with the following amended plans and documents:

No.	Document	Ref No.	Prepared by	Rev.	Date
1.	Architectural Plans
	Cover Sheet	00	Derek Raithby	12	Feb 2024
	Site Analysis Plan	01	Derek Raithby	12	Feb 2024
	Basement Floor Plan	02	Derek Raithby	12	Feb 2024
	Ground Floor Plan	03	Derek Raithby	12	Feb 2024
	First Floor Plan	04	Derek Raithby	12	Feb 2024
	Roof Plan	05	Derek Raithby	12	Feb 2024
	Elevation 1 of 2	06	Derek Raithby	12	Feb 2024
	Elevation 2 of 2	07	Derek Raithby	12	Feb 2024
	Section-A	08	Derek Raithby	12	Feb 2024
	Section-B	09	Derek Raithby	12	Feb 2024
	Calculation FSR	10	Derek Raithby	12	Feb 2024
	Calculation Landscape & Site Coverage	11	Derek Raithby	12	Feb 2024
	Windows & Door Schedule	12	Derek Raithby	12	Feb 2024
	Finishes Schedule	13	Derek Raithby	12	Feb 2024
	Shadow Diagrams	14	Derek Raithby	12	Feb 2024
	Shadow Diagrams	15	Derek Raithby	12	Feb 2024
	Solar Access Diagram	16	Derek Raithby	12	Feb 2024
	Site Management Plan	17	Derek Raithby	12	Feb 2024
	Streetscape Elevation	18	Derek Raithby	12	Feb 2024
	North Elevational Shadow Diagram @ 1 Emmerick Street 1 of 3	19a	Derek Raithby	12	Feb 2024
	North Elevational Shadow Diagram @1 Emmerick Street 2 of 3	19b	Derek Raithby	12	Feb 2024
	North Elevational Shadow Diagram @1 Emmerick Street 3 of 3	19c	Derek Raithby	12	Feb 2024
	East Elevational Shadow Diagram @ 1 Emmerick Street	20	Derek Raithby	12	Feb 2024
	Solar Access Diagram - Sun View - 1 of 3	21	Derek Raithby	12	Feb 2024
	Solar Access Diagram - Sun View - 2 of 3	22	Derek Raithby	12	Feb 2024
	Solar Access Diagram - Sun View - 3 of 3	23	Derek Raithby	12	Feb 2024
28.	Landscape Plans
	Landscape Concept Plan	1	Vision Dynamics	D	29 Feb 2024
30.	Stormwater Plans
	Coversheet and Legends	DA-SW100	JCO Consultants	4	01 Mar 2024
	General Notes and Specifications	DA-SW101	JCO Consultants	4	01 Mar 2024
	Stormwater Management Plan – Basement Floor	DA-SW200	JCO Consultants	4	01 Mar 2024
	Stormwater Management Plan – Ground Floor	DA-SW201	JCO Consultants	4	01 Mar 2024
	Details Sheet	DA-SW300	JCO Consultants	4	01 Mar 2024
	Erosion and Sediment Control Plan & Details	DA-SW600	JCO Consultants	4	01 Mar 2024
37.	Geotechnical Investigation Report		Nepean Geotechnics	2	01 Nov 2023
38.	Basix Certificate		Greenworld Architectural Drafting	2	28 Feb 2024
39.	NatHERS Certificate		Greenworld Architectural Drafting	-	28 Feb 2024

2. The Applicant filed the amended plans outlined above with the Court on 7 March 2024.

Orders

40. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA/2023/0477, as amended, for the construction of two x two-storey semi-detached dwellings (each on their own lot) including car parking, basement, pool, and associated landscaping and site works at 3 Emmerick Street, Lilyfield NSW 2040, subject to the conditions in the Annexure marked A.

……………………….

N Targett

Acting Commissioner of the Court

260384.23 Annexure A

**********

Decision last updated: 21 March 2024