Fragomeli v Inner West Council

[2023] NSWLEC 1456

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fragomeli v Inner West Council [2023] NSWLEC 1456

Hearing dates:

Conciliation conference 9 August 2023

Date of orders:

16 August 2023

Decision date:

16 August 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA/2022/0169 for the construction of two x three level semi detached dwellings with parking and associated works, each located on previously-approved Torrens title lots on land legally described as Lot 38 in DP 10482 and known as 17 Mary Street Lilyfield, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of new semi detached dwellings on approved subdivided lots – amended plans – experts agreed issues resolved – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, Pt 4, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 37

Inner West Local Environmental Plan 2022, cl 1.8A

Land and Environment Court Act 1979, s 34

Leichhardt Local Environmental Plan 2013, cll 4.3A, 5.10, 6.1, 6.2, 6.4

Local Land Services Act 2013, s 60O

State Environmental Planning Policy (Biodiversity & Conservation) 2021, Ch 2, s 2.7

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

Texts Cited:

Australian Standard AS 2021-2015 Acoustics—Aircraft noise intrusion—Building siting and construction

Department of Urban Affairs and Planning, Managing Land Contamination, 1998

Category:

Principal judgment

Parties:

Giovanna Fragomeli (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
S Hill (Solicitor) (Respondent)

Solicitors:
Gilbert Tobin (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/338835

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: The Applicant, Giovanna Fragomeli is the owner of land known as 17 Mary Street, Lilyfield (the site). The site has the benefit of an existing development consent, DA2021/0222, for demolition and subdivision of the land into two lots (the subdivision consent). The demolition has taken place. The development application, DA/2022/0169 seeks consent for the construction of two x three level semi detached dwellings with parking to be constructed on the lots approved under the subdivision consent. The Applicant appeals, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) the actual refusal of the development application by Inner West Council.

2. The matter was listed for conciliation on 9 April 2023 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was terminated, and the matter was subsequently listed for hearing.

3. On 6 June 2023 the Court granted leave for the amendment of the development application. The amendment incorporated amended plans, reports and certificates. The amendments broadly related to a reduction in the overall gross floor area of the development, reduction in the width of the driveway crossing, relocation of the proposed buildings within the site, amendments to the roof design and building finishes as well as the provision of additional landscaping.

4. Following the preparation and filing of joint expert reports, the Applicant sought and was granted further leave to further amend their development application on 2 August 2023. On the 8 August 2023 supplementary joint expert reports were filed with the Court. Those reports concluded that the contentions previously in dispute between the parties were resolved on the basis of the amended development application and the imposition of appropriate conditions of consent.

5. The matter was initially listed before me for hearing on 9-10 August 2023. The hearing commenced on site where the Court and parties heard from concerned residents. Following a brief conference with their experts, the Respondent advised that all contentions in this matter are resolved by the amended plans and the agreed conditions. On the application of the parties, the hearing was adjourned, and the matter was relisted for a conciliation conference between the parties under s 34(1) of the LEC Act, which was held on 9 August 2023. I presided over the conciliation conference.

6. 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 and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 9 August 2023.

7. 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 on the basis that:

1. The development application was lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)

2. The development application, as lodged, was notified by the Council between 29 March 2022 and 12 April 2022. Six submissions were received. In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act. I am satisfied that the issues raised have been considered by the parties and where appropriate are addressed in either amendments to the development application or conditions of consent.

3. Under s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), the consent authority cannot consent to carrying out any development on land unless it has considered whether the land is contaminated, and if so, it is satisfied that the land is suitable (or will be suitable after remediation) for the purpose for which the proposed development is to be carried out. The parties agree, and I accept, that the Site has been historically used for residential purposes and there is no change of use. Accordingly, there is no requirement for the consent authority to consider a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines. Further, the Site is not, and is not known to have been, used by activities listed in Table 1 of the NSW Government’s Planning Guidelines: Managing Land Contamination 1998. On the basis of the reports supporting the DA and the annexed conditions, I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

4. The development application seeks consent for the removal of one tree within the southern front setback. To the extent it could be argued that Ch 2 of State Environmental Planning Policy (Biodiversity & Conservation) 2021 (SEPP BC) applies to that vegetation, the effect of the SEPP BC is overcome in the present case due to the need for development consent under Pt 4 of the EPA Act: s 2.7(1) of SEPP BC and s 60O of the Local Land Services Act 2013.

5. The development application was lodged, but not determined, at the time of the commencement of Inner West Local Environmental Plan 2022 (LEP 2022). The effect of cl 1.8A of LEP 2022 is that the provisions of Leichhardt Local Environmental Plan 2013 (LEP 2013) continue to apply to the development application.

6. The site is zoned R1- General Residential under LEP 2013 and semi detached dwellings are permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone which are:

• To provide for the housing needs of the community.

• To provide for 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 improve opportunities to work from home.

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

• To provide landscaped areas for the use and enjoyment of existing and future residents.

• To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

• To protect and enhance the amenity of existing and future residents and the neighbourhood.

7. Pursuant to cl 4.3A Landscaped areas for residential accommodation in Zone R1, 15% of the site is required to be landscaped area. The amended development application complies with this standard providing 27% landscaped area.

8. For the purposes of cl 4.4(2B) Floor Space Ratio (FSR), the site is located within Area Six on the LEP 2013 maps. The site has a maximum FSR control of 0.8:1. The development application as amended is compliant with the standard.

9. The site is not identified on the LEP 2013 maps as being a heritage item or within a heritage conservation area. Clause 5.10 of LEP 2013 does not apply. I note the concerns of the residents in relation to the compatibility of the proposed development with the existing and desired future character of Mary Street. That matter was considered by the experts in the proceedings. Those experts reached an agreed conclusion that that the amended architectural and landscape plans resolved the Respondent’s previous contention and that the amended development is consistent with the desired future character of the Leichhardt Park Distinctive Neighbourhood.

10. The site is identified on the relevant LEP 2013 map as having Class 5 acid sulfate soil. The development application is accompanied by a Geotechnical Investigation and Acid Sulfate Soils (ASS) Assessment. That report concludes that a management plan is not required as the works proposed will not result in the lowering of groundwater where nearby ASS may be present and will not expose ASS to oxidation. The report satisfies the requirements of cl 6.1(4)(a) of LEP 2013.

11. As the development application proposes earthworks, cl 6.2 of LEP 2013 applies. The parties agree and I accept that the Geotechnical Investigation and ASS Assessment report details an appropriate excavation method for the proposed development. Further, I note that the annexed conditions require the preparation of dilapidation reports for adjoining properties. In determining the development application, I have given consideration to the matters at cl 6.2(3) and I am satisfied none warrant the refusal of the development application.

12. Pursuant to cl 6.4 Stormwater Management, consent must not be granted unless the consent authority is satisfied of the matters listed at subcl (3) of the provision. The development application includes stormwater engineering plans. The parties agree, and I accept, that the development as amended is designed to maximise the use of water permeable surfaces and will avoid the impacts of stormwater runoff on the site and surrounds.

13. The subject site is located within an area impacted by aircraft noise and is partially located within the 25 Australian Noise Exposure Forecast (ANEF) contour. The development application is accompanied by an acoustic report which demonstrates how the building can be constructed to comply with the relevant Australian Standard AS 2021-2015 Acoustics—Aircraft noise intrusion—Building siting and construction. Compliance with these construction requirements is included in the annexed conditions.

8. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

10. The Court notes that Inner West Council, as the relevant consent authority has agreed, under s 37(1) of the EPA Regulation to the Applicant amending Development Application No. DA/2022/0169 to incorporate the following material:

1. Amended Architectural Plans (Rev L) prepared by Pavela Architects dated 5 August 2023;

2. Amended Landscape Plan (Rev C) prepared by Michael Siu dated 8 August 2023; and

3. Costs Summary Report prepared by Pavela Architects dated 26 August 2020.

11. The Court orders that:

1. The appeal is upheld

2. Development application DA/2022/0169 for the construction of two x three level semi detached dwellings with parking and associated works, each located on previously-approved Torrens title lots on land legally described as Lot 38 in DP 10482 and known as 17 Mary Street Lilyfield, is determined by the grant of consent subject to the conditions at Annexure A.

D Dickson

Commissioner of the Court

338835.22 Annexure A

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Decision last updated: 16 August 2023