Freeman v Inner West Council

[2024] NSWLEC 1731

Land and Environment Court

New South Wales

Medium Neutral Citation:

Freeman v Inner West Council [2024] NSWLEC 1731

Hearing dates:

6 November 2024

Date of orders:

6 November 2024

Decision date:

06 November 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA/2023/0769 seeking consent for alterations and additions to an existing dwelling to provide a rooftop terrace and associated access at 39 Evans Street, Balmain is determined by the grant of consent, subject to conditions of consent at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION: alterations and addition to dwelling house in R1 General Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Inner West Local Environmental Plan 2022, cll 5.10, 6.3, Sch 5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9

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

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Robert Freeman (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/204567

Publication restriction:

Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: This appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Inner West Council of development application DA/2023/0769 seeking consent for alterations and additions to an existing dwelling to provide a rooftop terrace and associated access at 39 Evans Street, Balmain.

2. The Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided on 6 November 2024.

3. At the conciliation conference, the parties reached terms as to an agreement that is acceptable to the parties. The parties ask me to approve their decision as set out in an agreement prepared in accordance with s 34 of the LEC Act.

4. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

5. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

6. The site is located within the R1 General Residential zone according to the Inner West Local Environmental Plan 2022 (IWLEP), in which residential flat buildings are permitted with consent, where consistent with the objectives for development in the R1 zone, that are as follows:

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

7. The site is also located within The Valley Conservation Area, identified in Sch 5 of the IWLEP. The parties agree and I accept that the proposed development is not visible from Evans Street, and largely not visible at the rear when viewed from Ewell Street. As such, I accept the proposal is acceptable within The Valley Conservation Area, in accordance with cl 5.10 of the IWLEP.

8. The proposed development is limited to a rooftop terrace, accessed via an operable skylight. As the area of development is limited to that area of existing roof, no increase in impervious area is proposed. As such, there is no change in post development stormwater runoff than is presently the case. Accordingly, I am satisfied of those matters at cl 6.3(3) of the IWLEP because, firstly, there is no aspect of the proposal that causes me to have regard to the soil characteristics of the site. Secondly, as existing stormwater flows are maintained, and because of the reliance of this development application on an earlier consent that provides for stormwater drainage consistent with the terms of Part E – Water, Leichhardt Development Control Plan 2013, I accept there is no practicable requirement for on-site retention of stormwater beyond that proposed in the prior consent. Thirdly, the maintaining of pre development flows in post development stormwater drainage satisfies me no significant adverse impact of stormwater runoff on adjoining properties will result.

9. Relatedly, I am satisfied that the water quality and water flow are consistent with those matters about which I must be satisfied in accordance with s 6.6(2) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP).

10. Furthermore, the limited scope of development proposed satisfies me that the proposal will not have an impact on aquatic reserves, cause erosion or sedimentation in terms set out in s 6.7 of the Biodiversity SEPP.

11. As the site is not flood liable, does not impact recreational uses nor the public access to foreshores, waterways or the like, I do not consider ss 6.8 or 6.9 of the Biodiversity SEPP to apply.

State Environmental Planning Policy (Resilience and Hazards) 2021

12. Section 4.6(2) of State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority, or the Court on appeal, to consider whether the land on which development is proposed, is contaminated.

13. On the basis that the development proposed is limited to the rooftop of an existing dwelling, and that this development application relies upon a prior consent that considered whether the site is contaminated, I am satisfied that the site is suitable for the development proposed.

Conclusion

14. 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.

15. 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.

16. The Court notes that:

1. The Respondent, Inner West Council, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA/2023/0769 in accordance with the documents listed in Annexure A.

2. The Applicant filed the Amended Development Application with the Court on 6 November 2024.

Orders

17. The Court orders that:

1. The appeal is upheld.

2. Development application DA/2023/0769 seeking consent for alterations and additions to an existing dwelling to provide a rooftop terrace and associated access at 39 Evans Street, Balmain is determined by the grant of consent, subject to conditions of consent at Annexure B.

T Horton

Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 15 November 2024