Faytrouni v Inner West Council

[2024] NSWLEC 1385

Land and Environment Court

New South Wales

Medium Neutral Citation:

Faytrouni v Inner West Council [2024] NSWLEC 1385

Hearing dates:

Conciliation conference 4-5 June 2024

Date of orders:

09 July 2024

Decision date:

09 July 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to file the plans and documents listed at [2].

(2) The appeal is upheld.

(3) Development Consent is granted to Development Application DA/2023/0737 for the demolition of the existing dwelling, and the construction of a new two storey dwelling, inground pool and associated landscaping on Lots 17 & 18 DP 1876, known as 122 View Street, Annandale, subject to conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dwelling – heritage conservation area - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Environmental Planning and Regulation 2021, ss 27, 38

Inner West Local Environmental Plan 2022, cll 2.7, 4.3C, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.8, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation), ss 6.6, 6.7, 6.8, 6.9, 6.10, Ch 6

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

Category:

Principal judgment

Parties:

Bilal Faytrouni (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2023/360064

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application DA/2023/0737. The development application seeks development consent for the demolition of the existing dwelling and construction of a two storey dwelling with garage car stacker, pool and associated landscaping (DA) at 122 View Street, Annandale, legally described as Lots 17 and 18 in DP 1876 (site).

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA/2023/0737 in accordance with the documents listed below (amended DA):

1. Architectural Plans set prepared by Justin Long Design 100 @A3:

Drawing Title	Drawing No.	Revision
Cover Sheet, Materials and Finishes	A00	B - Dated 20.5.24
Survey Plan	A01	B - Dated 20.5.24
Existing Floor Plan & Site Analysis Plan	A02	B - Dated 20.5.24
Streetscape Analysis	A03	D - Dated 5.6.24
Demolition Plan	A04	B - Dated 20.5.24
Landscape Plan [Areas]	A05	D - Dated 5.6.24
Proposed Ground Floor Plan	A06	D - Dated 5.6.24
Proposed Upper Floor Plan	A07	D - Dated 5.6.24
Basement Floor Plan	A08	D - Dated 5.6.24
Car Stacker Manufacturer’s Details	A08A	D - Dated 5.6.24
Proposed Roof & Concept Stormwater Plan	A09	D - Dated 5.6.24
Longitudinal & Cross-Section	A10	D - Dated 5.6.24
Front and Rear Elevations	A11	D - Dated 5.6.24
Side Elevations	A12	D - Dated 5.6.24
FSR Calculation Diagram	A13	D - Dated 5.6.24
Soil & Sediment Erosion Control Plan	A14	Dated 23.8.23

2. Engineering/civil drawings prepared by ANA Civil Pty Limited:

Drawing Title	Drawing No.	Revision	Dated
Hydraulic Details	2023244 H01	13	5/6/2024
Hydraulic Details	2023244 H02	8	3/6/2024

3. Landscape Plan prepared by A Total Concept Landscape Architects – Revision E dated 05/06/2024:

Drawing Title	Drawing No.
Proposed Landscape Plan	L/01 Rev E
Landscape Details	L/02 Rev E
Landscape Specification	L/03 Rev E

4. Tree Location Plan prepared by Hugh the Arborist Revision 1 dated 4 June 2024;

5. Clause 4.6 variation request to cl 4.4 Floor Space Ration of the Inner West Local Environmental Plan 2022.

6. BASIX Certificate No 1415233S_02 Dated 6 June 2024.

3. It is noted that the BASIX Certificate was filed to the Court on 6 June 2024.

4. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 and 5 June 2024. I have presided over the conciliation conference.

5. 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 for the amended DA and granting development consent to the amended DA subject to conditions.

6. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. 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.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

9. 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 and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

10. I am satisfied that owners consent accompanied the DA. The DA was lodged to the Respondent on 5 September 2023. The Respondent notified the DA between 27 September 2023 to 11 October 2023. Three submissions were received, outlining their objections. At the commencement of the proceedings, two objectors expressed their concerns orally and a set of without prejudice amended plans was provided to them for further feedback. The Court and parties were assisted by viewing some of the concerns raised from both objectors’ properties.

11. In reaching agreement, the parties have considered the concerns raised by objectors.

Inner West Local Environmental Plan 2022

12. The site is zoned R1 General Residential under the Inner West Local Environmental Plan 2022 (IWLEP). The proposed development for a dwelling is permitted with consent and I have had regard to the objectives of the zone.

13. The parties agree and I accept that the following applicable IWLEP provisions are met:

1. Clause 2.7 requires development consent for demolition, as proposed within the amended DA.

2. Clause 4.3C landscaped areas applies to the site, with a minimum of 20% landscaping required. The amended architectural plans demonstrate that the minimum landscaped areas are met.

3. Clause 4.4 floor space ratio (FSR) applies to the proposed development, with a maximum FSR of 0.7:1. As a result of the car parking provisions, the parties submit that a cl 4.6 written request is required as the resultant FSR is 0.776:1. The parties agree and I accept that the cl 4.6 written request prepared by Mr Kim Burrell dated 5 June 2024 (written request) satisfies the provisions of cl 4.6.

4. Clause 5.10 heritage conservation applies to the site, which is located in the Annandale Heritage Conservation Area, pursuant to Sch 5. With consideration of the agreement of the heritage experts in the heritage joint expert report, I accept that the provisions have been adequately considered.

5. Clause 6.1 acid sulfate soils applies as the site is mapped as Class 5. The parties submit that the proposed works will not lower the watertable and accordingly, the provisions of subcll (2) and (3) do not apply.

6. Clause 6.2 earthworks applies to the amended DA. I accept the parties’ agreement that the amended DA meets the provisions as supported by the demolition plan prepared by Justin Long Design dated 20 May 2024, spoil and sediment control plan prepared by Justin Long Design dated 23 August 2023, hydraulic plans prepared by ANA Civil dated 3 and 5 June 2024 (hydraulic plans) and as set out in the Statement of Environmental Effects prepared by Mr Kim Burrell dated August 2023 (SEE).

7. The parties agree that cl 6.3 stormwater management applies to the site. On the basis of the hydraulic plans and SEE, I accept that the provisions are met.

8. Clause 6.8 in relation to aircraft noise does not apply as the site is located below the ANEF contour of 20.

Environmental Planning and Assessment Regulation 2021

14. The parties agree and I am satisfied that the amended DA is accompanied by an amended BASIX Certificate that meets the provisions of s 27 of the Environmental Planning and Assessment Regulation 2021.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

15. Chapter 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site, which is located within the Sydney Harbour Catchment. Sections 6.6, 6.7, 6.8, 6.9 and 6.10 are relevant.

16. The amended DA is accompanied by hydraulic plans that adequately minimise stormwater impacts from the amended DA. In particular, the parties set out in the jurisdictional statement that overland flow near the pool has been amended to manage stormwater impacts and discharge to Council’s drainage system through filtering groundcover vegetation. The hydraulic plans form part of the conditions of consent at Annexure A and further conditions within Annexure A will appropriately regulate ongoing stormwater management. I accept that the proposed development is unlikely to have an adverse environmental impact.

17. With consideration of the above and the jurisdictional statement, the parties agree and I accept that the provisions of SEPP BC have been satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The SEE states that the site has a history of residential use for many years. Accordingly, the parties agree and I accept that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

Conclusion

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.

20. 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.

21. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

22. The Court orders:

1. The Applicant is to file the plans and documents listed at [2].

2. The appeal is upheld.

3. Development Consent is granted to Development Application DA/2023/0737 for the demolition of the existing dwelling and the construction of a new two storey dwelling, inground pool and associated landscaping on Lots 17 & 18 DP 1876, known as 122 View Street, Annandale, subject to conditions of consent in Annexure A.

S Porter

Commissioner of the Court

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Annexure A

Decision last updated: 09 July 2024