Exorno Investments Pty. Limited v Inner West Council

[2023] NSWLEC 1103

Land and Environment Court

New South Wales

Medium Neutral Citation:

Exorno Investments Pty. Limited v Inner West Council [2023] NSWLEC 1103

Hearing dates:

Conciliation conference on 27 and 28 February 2023

Date of orders:

9 March 2023

Decision date:

09 March 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)      the appeal is upheld.

(2)    Development Application No. DA/2021/1381 for the alterations and additions to an existing dwelling house at 1 Charles Street, Enmore (Lot 18 in DP 1236) is approved subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

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

Environment Planning and Assessment Regulation 2000, cl 55
Inner West Local Environmental Plan 2022, cl 1.8A

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

Marrickville Local Environmental Plan 2011, cll 2.3, 4.3, 4.4, 5.10, 5.21, 6.2, 6.4, 6.5, 6.6

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

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

Texts Cited:

Marrickville Development Control Plan 2012

NSW Department of Urban Affairs and Planning and Environment Protection Authority, Managing Land Contamination – Planning Guidelines, 1998

Inner West Council, Community Engagement Framework, 2019

Category:

Principal judgment

Parties:

Exorno Investments Pty. Limited (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
J Marsland (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s):

2022/307175

Publication restriction:

No

Judgment

1. COMMISSIONER: Exorno Investments Pty. Limited (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of Development Application DA/2021/1381 for the alterations and additions to an existing dwelling house (the Proposed Development) at 1 Charles Street, Enmore (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s Development Application was notified between 22 February and 8 March 2022 under the provisions of Inner West Council’s Community Engagement Framework, and six submissions were received in response to that notification.

4. On 27 and 28 February 2023, the Parties participated in a s 34AA conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions. A site inspection had been undertaken prior to the commencement of the conciliation conference.

5. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

6. 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.

7. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this:

1. the Parties have agreed that the Subject Site has been historically used for residential purposes and there is no change of use proposed by the Applicant;

2. the Subject Site is not used by activities listed in Table 1 of the NSW Governments Managing Land Contamination – Planning Guidelines 1998;

3. no excavation is proposed as part of the Proposed Development; and

4. I am satisfied that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal;

2. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: Basix) 2004 (SEPP BASIX), the Applicant has provided an amended BASIX certificate (No. 1266656S_02 dated 2 March 2023) in fulfilment of the requirements of SEPP BASIX.

3. in relation to the provisions of Marrickville Local Environmental Plan 2011 (MLEP)

1. as the Applicant’s development application (DA) was lodged but not determined at the time that Inner West Local Environmental Plan 2022 (IWLEP) came into effect, the DA is captured under the savings provision at cl 1.8A of IWLEP, and accordingly the provision of the former instrument MLEP apply to the determination of the Proposed Development;

2. the Subject Site is zoned R2: Low Density Residential under the provisions of cl 2.3 of MLEP, and the Proposed Development, being a dwelling house within the R2 zone, is permissible with consent;

3. in relation to the provisions of cl 4.3 in relation to Height of Buildings (HOB), the Subject Site is subject to a HOB development standard of 9.5m, and the Proposed Development (as amended) seeks consent for a maximum building height of 9.26m;

4. in relation to the provisions of cl 4.4(2A) in relation to Floor Space Ratio (FSR), the Applicant’s amended architectural drawings dated 28 February 2023 confirm that the Proposed Development’s FSR of 1.1:1 is compliant with the provisions of cl 4.4(2A);

5. in relation to the provisions of cl 5.10 concerning heritage, the Subject Site is not listed as having heritage significance nor is it located in or within direct view of a heritage conservation area or an item of heritage significance;

6. in relation to the provisions of cl 5.21 concerning flood planning, the Subject Site is not identified as being located on flood prone land;

7. in relation to the provisions of cl 6.2 concerning earthworks, the Applicant has proposed some minor earthworks in order to construct the concrete footings of the proposed rear addition, and the Parties agree, and I am satisfied, that these works will not impact the groundwater or soil stability in compliance with the provisions of the provisions of cl 6.3;

8. in relation to the provisions of cl 6.4 concerning terrestrial biodiversity, the Subject Site is not identified as being located on land identified as “Biodiversity” on the Natural Resource—Biodiversity Map, and so the provisions of cl 6.4 do not apply to the Proposed Development;

9. in relation to the provisions of cl 6.5 concerning aircraft noise, the Subject Site is located within the 20-25 Australian Noise Exposure Forecast (ANEF) contour of Sydney Airport, and:

1. the Applicant has provided an Acoustic Report assessing the potential impacts of aircraft noise on the Proposed Development; and

2. the Parties have agreed to the imposition of a condition of consent requiring the preparation prior to the issue of a Construction Certificate (CC) of an updated acoustic report to confirm the outcomes of the acoustic impact assessment;

10. in relation to the provisions of cl 6.6 concerning airspace operations, the Proposed Development has a maximum HOB below RL 51.100 Australian Height Datum (AHD), and the Parties agree, and I am satisfied, that the Sydney Airport Obstacle Limitation Surface will not be penetrated by the Proposed Development;

4. in relation to the provisions of Marrickville Development Control Plan 2011 (MDCP) the Parties have considered the provisions of MDCP, and they agree, and I am satisfied, that the Proposed Development is compliant with the provisions of the following relevant parts of MDCP or if not, it achieves the objectives of the controls in those parts:

1. Part 2 in relation to General Provisions appliable to developments subject to the controls in MDCP;

2. Part 4 in relation to controls concerning residential development subject to provisions of MDCP; and

3. Part 9.8 in relation to controls applicable to the Strategic Context: Enmore North and Newtown Central (Precinct 8);

5. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act.

8. Having considered the advice of the Parties, provided above at [7], I agree that:

1. regard has been had to the objectives of the Subject Site’s zoning in determining the Applicant’s development application;

2. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

4. approval of the Proposed Development is in the public interest.

9. Further, 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.

10. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

11. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

12. The Court notes that the Applicant has amended development application No. DA/2021/1387 with the agreement of Inner West Council (pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000) as the relevant consent authority to incorporate the following amended plans and documents:

1. Amended Architectural Plans (up to Rev F), prepared by McGregor Westlake Architects dated 28 February 2023; and

2. BASIX Certificate No. 126656S_02 dated 2 March 2023.

Orders

13. The Court orders that:

1. the appeal is upheld;

2. Development Application No. DA/2021/1381 for the alterations and additions to an existing dwelling house at 1 Charles Street, Enmore (Lot 18 in DP 1236) is approved subject to the conditions set out in Annexure A.

M Chilcott

Commissioner of the Court

Annexure A

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Decision last updated: 09 March 2023