ES Engineering and Design Pty Ltd v Inner West Council

[2023] NSWLEC 1242

Land and Environment Court

New South Wales

Medium Neutral Citation:

ES Engineering and Design Pty Ltd v Inner West Council [2023] NSWLEC 1242

Hearing dates:

Conciliation conference held on 10 May 2023

Date of orders:

23 May 2023

Decision date:

23 May 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   Leave is granted to the applicant to rely on the amended plans at Condition 1 of the conditions of consent, described in Annexure A.

(2)   The appeal is upheld.

(3)   Development Application DA/2022/0365, as amended, seeking consolidation of 2 lots into one lot, demolition of existing structures and construction of a dual occupancy dwelling with Strata Title subdivision on Lot 1 Deposited Plan (DP) 122410 and Lot 12, Section A in DP 1663, also known as 226 Norton Street, Leichhardt is determined by grant of consent, and subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – consolidation of lots with strata title subdivision – attached dual occupancy dwellings – conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Inner West Local Environmental Plan 2022

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

Leichhardt Local Environmental Plan 2013, cll 2.3, 4.4, 5.21, 6.1, 6.2, 6.3

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

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

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

ES Engineering and Design Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
J Marsland (Solicitor) (Respondent)

Solicitors:
Conomos Legal
Apex Planning & Environment Law

File Number(s):

2022/351598

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application DA/2022/0365 by the Inner West Council (hereafter the Council), which as amended, seeks demolition of existing structures, consolidation of two lots into one lot, construction of attached dual occupancy dwellings with associated works, and strata subdivision into two lots on Lot 1 Deposited Plan (DP) 122410 and Lot 12, Section A in DP 1663, also known as 226 Norton Street, Leichhardt (hereafter the site).

Background

2. Development Application DA/2022/0365 (the application) was lodged with Council on 15 May 2022, and refused by Council on 1 November 2022, following notification (with three written submissions received during the notification period) and internal review.

3. The applicant appealed against the refusal, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an onsite view at the request of the parties, and then held in person. Residents from 224 and 232 Norton Street provided oral submission at the start of the conciliation. Issues raised by these residents related to geotechnical foundations, appropriate boundary fencing and privacy treatment to a stairwell window.

5. The Council approved the applicant to amend the plans and documents that support and amend the application, submitted pursuant to s 37(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

6. Based on the amended application and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been resolved, and that the issues raised by residents have been considered.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application DA/2022/0365, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the application. The following jurisdictional requirements have been specifically considered and are satisfied:

1. Leichhardt Local Environmental Plan 2013 (LLEP) and Inner West Local Environmental Plan 2022 (IWLEP):

1. The LLEP is the relevant environmental planning instrument that applies to the site. Pursuant to cl 2.3 of the LLEP, the proposed development is situated over land zoned R1 General Residential. The proposed development, as described to the Court, is permissible with consent in this zone. The amended application sufficiently addresses all the relevant objectives, aims, standards and provisions of the LLEP, and as specifically assessed cll 4.4, 5.21, 6.1, 6.2 and 6.3.

2. The IWLEP was gazetted on 24 November 2022. Having regard to the more recent environmental planning instrument, the amended application sufficiently addresses all the relevant objectives, aims, standards and provisions of the IWLEP.

2. EPA Reg:

1. The applicant has satisfied the Court with regards to consent of landowner relevant to the application, pursuant to s 23 of the EPA Reg.

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

1. A BASIX Certificate (1284338M-04) issued on 3 May 2023 is relevant to the proposed development, as amended, and are identified in the conditions of consent.

4. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site has historically been used for residential purposes, the existing residential use prevails and there are no records of contamination relating to the site. The Court is satisfied the requirements of s 4.6 of SEPP Resilience are addressed.

5. Leichhardt Development Control Plan 2013 (LDCP):

1. The relevant requirements of the LDCP are generally complied with, based on the amended plans, supporting documents to the application and the conditions of consent. The original application was publicly notified in accordance with the LDCP, and the Court is satisfied that the submissions received have been considered in Council’s merit assessment of the application, and where appropriate, issues are addressed by amendments to the application and conditions of consent.

2. The applicant has agreed to address the issue relating to fencing raised by the adjoining residents in oral submission by constructing a new fence for the full boundary length separating the adjoining properties in a material to be agreed between the lot owners, at the cost of the applicant.

Grant of consent

9. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

10. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submissions and relevant streetscape character.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA/2022/0365 can be granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

12. As the parties' agreement 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.

13. The Court notes that:

1. The Inner West Council, as the relevant consent authority, has approved, submitted under section 37(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA/2022/0365.

2. The applicant filed the plans and material that amend the application with the Court on 8 May 2023.

14. The Court orders that:

1. Leave is granted to the applicant to rely on the amended plans at Condition 1 of the conditions of consent, described in Annexure A.

2. The appeal is upheld.

3. Development Application DA/2022/0365, as amended, seeking consolidation of 2 lots into one lot, demolition of existing structures and construction of a dual occupancy dwelling with Strata Title subdivision on Lot 1 Deposited Plan (DP) 122410 and Lot 12, Section A in DP 1663, also known as 226 Norton Street, Leichhardt is determined by grant of consent, and subject to the conditions set out in Annexure A.

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 23 May 2023