Ghattas v Inner West Council

[2024] NSWLEC 1057

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ghattas v Inner West Council [2024] NSWLEC 1057

Hearing dates:

Conciliation conference on 14 February 2024

Date of orders:

20 February 2024

Decision date:

20 February 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to rely on the Amended Development Application.

(2) The Applicant’s clause 4.6 written request dated 24 November 2023 prepared by Architectus seeking to grant consent in contravention of clause 4.4(3) of the Inner West Local Environmental Plan 2022 is upheld.

(3) The Applicant is pay the Council’s costs under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $3,500 payable within 28 days of the date of these orders.

(4) The appeal is upheld.

(5) Development Application No DA/2023/0135, as amended, for the demolition of an existing dwelling, subdivision of land into 2 lots and construction of 2 semi-detached 2-storey dwellings on land legally described as Lot E in DP19053 and known as 40 Collins Street, Annandale NSW 2038, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: semi detached dwelling development in R1 – General Residential zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Inner West Local Environmental Plan 2022, cll 2.6, 4.1 4.3, 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) 2021, Ch 6, s 6.6

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

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited:

Inner West Community Engagement Strategy 2022-24

Leichhardt Development Control Plan 2013

Standards Australia, Australian Standard AS 2021:2015, March 2015

Category:

Principal judgment

Parties:

Talal Ghattas (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
J Marsland (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s):

2023/216170

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Inner West Council of Development Application No DA/2023/0135 seeking consent for demolition of an existing dwelling, Torrens title subdivision of 1 lot into 2 lots, and the construction of 2 x 2-storey semi detached dwellings at 40 Collins Street, Annandale.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 February 2024, and at which I presided.

3. However, prior to the conciliation conference the parties reached an in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties.

4. This agreement between the parties involves the Court upholding the appeal and granting development consent to the development application subject to those agreed conditions of consent, in accordance with s 4.17 of the EPA Act.

5. I note here that a signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 13 February 2024.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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. 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.

8. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the following environmental planning instruments:

• Inner West Local Environmental Plan 2022

• State Environmental Planning Policy (Biodiversity and Conservation) 2021

• State Environmental Planning Policy (Resilience and Hazards) 2021.

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

• State Environmental Planning Policy (Transport and Infrastructure) 2021

9. 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.

10. The development application was lodged by Mr Talal Ghattas on 17 March 2023, affirming consent of the owner of the land, Cadia1 Pty Ltd.

11. The DA was notified in accordance with the Respondent’s Community Engagement Strategy 2022-24 between 29 March 2023 and 14 April 2023. Five submissions were received during the notification period.

12. The site is located within the R1 – General Residential zone according to the Inner West Local Environmental Plan 2022 (IWLEP), in which semi-detached dwelling development is permitted with consent, where consistent with the objectives of the R1 zone, that 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 provide residential development that maintains the character of built and natural features in the surrounding area.

13. Likewise, subdivision of the sort proposed is also permitted with consent under cl 2.6 of the IWLEP.

14. Clause 4.1 of the IWLEP sets a minimum subdivision lot size of 200m², and subdivision of 1 lot into 2 lots of 306.5m² each complies with the standard at cl 4.1(3).

15. The height standard at cl 4.3 does not prescribe a height of building control for the site.

16. As the site is identified in Area 1 on the relevant map at cl 4.3C, a landscaped area of not less than 20% on a site such of this area is required, with a site coverage that does not exceed 60% of the site area. A landscaped area of 23% and site coverage of 46.9% for both Lot 1 and Lot 2 is proposed.

17. A floor space ratio of 0.7:1 applies to each of the lots proposed by virtue of cl 4.4(2B) of the IWLEP.

18. The Applicant asserts the Floor Space Ratio (FSR) is only exceeded if the car parking rates are read as a minimum, and not a maximum, notwithstanding the rates are expressed as a range. When the floor space allocated to car parking is factored, the FSR proposed for each lot is 0.77:1, and the parties rely upon a written request prepared by Architectus in accordance with cl 4.6 of the IWLEP, in the form current at the time of lodgement of the DA.

19. The parties agree, and I am satisfied, that the objectives of the FSR standard, are achieved, notwithstanding the non-compliance for reasons summarised as follows:

1. In respect of objective (a), the visible floor space at ground level and first floor are within the maximum floor space ratio to achieve an appropriate development density.

2. In respect of objective (b), the exceedance does not impact or add to the bulk or density of the building above ground, and the proposal is well-mannered to reflect the Annandale Heritage Conservation Area (Annandale HCA).

3. In respect of objective (c), the site is within an area of different development densities such as residential flat buildings, attached terrace housing and semi-detached dwellings. As such, the proposed subdivision of one into two lots is consistent with development in the area.

4. In respect of objective (d), compliance with site coverage and landscaped area requirements, and building envelope controls within the Leichhardt Development Control Plan 2013 demonstrate that impacts on local amenity are minimised.

5. In respect of objective (e), the proposal has no impact on the tree canopy of the area and so the exceedance does not compromise the use and enjoyment of private properties or the public domain.

20. I also accept and am satisfied that there are sufficient environmental planning grounds to justify the contravention of the FSR standard, for the reasons set out in the written request, summarised as follows:

1. The exceedance provides for off street car parking that addresses the likely need generated by the development.

2. The driveway access to the basement car parking is minimised in width, and largely concealed behind a palisade gate so as to be less visible than the existing at-grade driveways on adjoining properties.

3. The proposed built form is compliant other than in respect of FSR, and the exceedance is limited to the basement of each proposed dwelling.

21. The written request also asserts the proposed development will be in the public interest because, firstly, it is consistent with the objectives of the height control standard for the reasons given, and secondly, because it is consistent with the objectives for development in the R1 zone. Additionally, when those matters at cl 4.6(5) are considered, the concurrence of the Secretary may be assumed.

22. The Respondent is satisfied that the written request has adequately addressed the matters to be demonstrated by cl 4.6(3) of the IWLEP and that the proposed development will be in the public interest because it is consistent with the objectives of the standard, and of the R1 zone.

23. I am also satisfied under cl 4.6(4) of the IWLEP that the written request has adequately addressed the matter to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and of the R1 zone, for the reasons set out in the written request.

24. Finally, I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the IWLEP and I find no grounds on which the Court should not uphold the written request.

25. The site is located within the Annandale HCA, identified as such in Sch 5 of the IWLEP, and is in the vicinity of local heritage items. As such, cl 5.10 of the IWLEP applies. On the basis of the Statement of Heritage Impact prepared by Tonkin Zulaikha Greer Heritage dated November 2022, I accept the proposal does not have a detrimental impact on the Annadale HCA or heritage items nearby.

26. The site is identified on the relevant map at cl 6.1 of the IWLEP as class 5 ‘’Acid Sulfate Soils’, but the development does not require excavation on land that is below 5m AHD and so is not likely to lower the watertable.

27. I have considered those matters required to be considered by cl 6.2(3) of the IWLEP and, on the basis of the Geotechnical Investigation Report prepared by Geo-Environmental Engineering dated 24 October 2023, and the Stormwater Management Plans prepared by IGS, I consider those matters sufficiently addressed.

28. I am satisfied that the exceedance of the minimum landscaped area required on the site by cl 4.3C demonstrates that the development has been designed to maximise the use of water permeable surfaces, in accordance with cl 6.3 of the IWLEP. Furthermore, I am satisfied that the stormwater management plans incorporate on-site retention of rainwater for use of an alternative supply for laundry, toilets and outdoor irrigation, and that the development has been designed to drain towards, and connect into, Council’s existing drainage system on Collins Street so as to avoid significant adverse impact of stormwater runoff on adjoining properties.

29. The Aircraft Noise Intrusion Assessment prepared by Pulse White Noise Acoustics dated 28 June 2022 (Acoustic Report) identifies the site is located within the Sydney Airport Aircraft Noise Exposure Forecast (ANEF) 20 contour. As such, cl 6.8 of the IWLEP applies to the development. On the basis of the conclusions set out in the Acoustic Report I note Aircraft Noise Reduction are recommended, and the agreed conditions of consent require certification of indoor sound levels, consistent with Australian Standard AS 2021:2015.

State Environmental Planning Policy (Resilience and Hazards) 2021

30. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use.

31. On the basis of the detailed historical chronology of the site set out in the Statement of Heritage Impact cited at [25], and the history of ownership at Section 2.4 of that Statement, I accept that the site has been within a residential setting since at least 1873, with the likely date of development on the site to have been between 1951 and 1955. As such I consider the land suitable in its current state for the purpose for which development is proposed to be carried out.

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

32. The application is accompanied by a BASIX certificate (Cert No 1314301M_02 dated 12 February 2024) prepared by IGS in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP 2004).

33. The Court notes the repeal of the BASIX SEPP 2004 on 1 October 2023, and the savings and transitional provisions at s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP) that have the effect of saving the Amended DA from the provisions of Sustainable Buildings SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

34. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) contains provisions relating to development within regulated catchments, such as the Sydney Harbour Catchment in which the site is located.

35. On the basis of the Stormwater Plans cited at [27], and the statement prepared by IGS dated 16 February 2024 as to the neutral or beneficial effect of the development on the quality of water entering the Sydney Harbour Catchment, I am satisfied of those matters about which I must be satisfied, pursuant to s 6.6(2) of the Biodiversity and Conservation SEPP.

State Environmental Planning Policy (Transport and Infrastructure) 2021

36. As the proposal involves the penetration of ground within 2m of an underground electricity power line, s 2.48(2) of State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to require the electricity supply authority to be notified for comments about potential safety risks, and to consider any response to the notice.

37. Ausgrid, as the relevant supply authority, has been notified and does not object to the proposed development.

Conclusion

38. 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.

39. 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.

40. The Court notes that:

1. The Respondent, as the relevant consent authority, has approved under section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No DA/2023/0135 in accordance with the following amended plans (Amended Development Application):

Title Drawing No and Revision	Prepared by	Date
1.	Architectural Plan	Tonkin Zulaikha Greer Architects
	Drawing No. A 000 – Cover Page, Rev C		24 November 2023
	Drawing No. A 001 – Site Analysis		28 November 2022
	Drawing No. A 010 – Demolition Plan, Rev A		6 October 2023
	Drawing No. B 100 – Basement Floor Plan, Rev B		24 November 2023
	Drawing No. A 101 – Ground Floor Plan, Rev B		24 November 2023
	Drawing No. A 102 – First Floor Plan, Rev A		24 November 2023
	Drawing No. A 103 – Roof Plan, Rev A		24 November 2023
	Drawing No. A 104 – 1:100 Ground Floor Part Plan		24 November 2023
	Drawing No. A 105 – 1:100 Level 1 Floor Part Plan		24 November 2023
	Drawing No. A 200 – Elevations, Rev C		24 November 2023
	Drawing No. A 201 – Elevations – East and West		24 November 2023
	Drawing No. A 300 – Sections, Rev B		24 November 2023
	Drawing No. A 301 – Sections, Rev A		24 November 2023
	Drawing No. A 302 – Sections		24 November 2023
	Drawing No. A 400 – Shadow Plans – Existing and Proposed, Rev B		24 November 2023
	Drawing No. A 400a – Shadow Plans – Existing and Proposed, Rev A		24 November 2023
	Drawing No. A 401 – Shadow Elevations Neighbour 38 – Existing and Proposed, Rev A		24 November 2023
	Drawing No. A 402 – Shadow Elevations Neighbour 42 – Existing and Proposed, Rev B		24 November 2023
	Drawing No. A 403 – Shadow Comparison – DCP Envelope		24 November 2023
	Drawing No. A 404 – Shadow Studies – Eye of the Sun, Rev A		24 November 2023
	Drawing No. A 405 – Shadow Studies – Eye of the Sun, Rev A		24 November 2023
	Drawing No. A 406 – Shadow Studies – Eye of the Sun, Rev A		24 November 2023
	Drawing No. A 407 – Shadow Studies – Eye of the Sun, Rev A		24 November 2023
	Drawing No. A 408 – Shadow Studies – Eye of the Sun, Rev A		24 November 2023
	Drawing No. A 500 – GFA, Rev D		24 November 2023
	Drawing No. A 600 – Photomontage, Rev A		24 November 2023
	Drawing No. A 601 – Photomontage, Rev A		24 November 2023
	Drawing No. A 602 – Perspective Image		24 November 2023
	Drawing No. A 603 – Perspective Image		24 November 2023
	Drawing No. A 604 – Perspective Image		24 November 2023
	Drawing No. A 605 – Perspective Image		24 November 2023
	Drawing No. A 700 – Material Finishes, Rev A		24 November 2023
2.	Landscape Plan	Ground Ink Landscape Architects	30 November 2023
	Cover page
	Site Context, Rev B, Page 2
	Design Images, Rev B, Page 3
	Landscape Concept Plan – Ground Floor, Rev B, Page 4
	Landscape Concept Plan, First Floor, Rev B – Page 5
	Planting Palette – Rev B – Page 6
	Landscape Details – Rev B – Page 7
3.	Stormwater Management Plan	Integrated Group Services	27 October 2023
	Drawing No. SW00 – Stormwater Management Cover Sheet – Rev 03
	Drawing No. SW01 – Stormwater Management Basement Plan – Rev 03
	Drawing No. SW02 – Stormwater Management Ground Floor Plan – Rev 03
	Drawing No. SW03 – Stormwater Management Level 1 Plan – Rev 03
	Drawing No. SW04 – Stormwater Management Roof Plan – Rev 03
	Drawing No. SW05 – Stormwater Management Sediment and Erosion Control Plan – Rev 02
	Drawing No. SW100 – Stormwater Management Detail Sheet – Rev 01
Reports/Documents
11.	Architectural Design Statement, Rev A	Tonkin Zulaikha Greer Architects	24 November 2023
12.	Clause 4.6 written request, Revision B	Architectus	24 November 2023
13.	Response to Statement of Facts and Contentions	Integrated Group Services	27 October 2023
14.	Geotechnical Investigation Report, Rev 1	Geo-Environmental Engineering	24 October 2023
15.	BASIX Certificate No. 1314301M	IGS	12 February 2024
16.	BASIX Assessment Report (Revision 2.0)	IGS	12 February 2024

2. The Amended Development Application was filed with the Court on 14 February 2024.

Orders

41. The Court orders that:

1. Leave is granted to the Applicant to rely on the Amended Development Application.

2. The Applicant’s clause 4.6 written request dated 24 November 2023 prepared by Architectus seeking to grant consent in contravention of clause 4.4(3) of the Inner West Local Environmental Plan 2022 is upheld.

3. The Applicant is pay the Council’s costs under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $3,500 payable within 28 days of the date of these orders.

4. The appeal is upheld.

5. Development Application No DA/2023/0135, as amended, for the demolition of an existing dwelling, subdivision of land into 2 lots and construction of 2 semi-detached 2-storey dwellings on land legally described as Lot E in DP19053 and known as 40 Collins Street, Annandale NSW 2038, is determined by the grant of development consent subject to the conditions at Annexure A.

T Horton

Commissioner of the Court

Annexure A

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Decision last updated: 21 February 2024