Ginardi v Inner West Council

[2023] NSWLEC 1688

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ginardi v Inner West Council [2023] NSWLEC 1688

Hearing dates:

Conciliation conference on 1 November 2023

Date of orders:

16 November 2023

Decision date:

16 November 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) Leave is granted to the Applicant to rely on the Amended Development Application in accordance with the documents listed at [23(1)].

(2) The Applicant’s clause 4.6 written request dated 31 October 2023 prepared by James Lovell and Associates seeking to grant consent in contravention of clause 4.3C(3) of the Inner West Local Environmental Plan 2022 is upheld.

(3) The Appeal is upheld.

(4) Development Application No. DA/2022/0850, as amended, for the partial demolition of an existing dwelling and construction of a new two-storey dwelling with basement storage and tree removal on land legally described as Lot 1 in DP1283531, also known as 2 Duke Street, Balmain East, NSW, 2041, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

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

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

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

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

State Environmental Planning Policy (Biodiversity and Conservation), Ch 2

Category:

Principal judgment

Parties:

Carmelo Ginardi (First Applicant)
Edward Nicholas Ginardi (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Shneider (Solicitor) (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Houston Dearn O’Connor Lawyers (Respondent)

File Number(s):

2023/130810

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as the result of the deemed refusal, by Inner West Council of development application DA/2022/0850, which seeks approval for the partial demolition of an existing dwelling and construction of a new two-storey dwelling with basement storage and tree removal at 2 Duke Street, Balmain East, legally known as Lot 1 in DP 1283531 (the site).

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. 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 1 November 2023. I presided over the conciliation conference, at which the parties reached agreement as to the acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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, however 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 they have been satisfied. From this I note the following points.

5. During the conciliation, the Applicants amended the development application in response to the contentions raised by the Respondent. Principally, these amendments result in the removal of the off-street parking and associated driveway, enabling the retention of the front sandstone rooms and remaining sandstone walls of the heritage listed cottage, and the provision of an increased setback of the new two-storey addition by providing a separation of 2.4m between the existing cottage and new extension.

6. The development application has been made by Brad Inwood Architects as agents for Carmelo Ginardi and Edward Nicholas Ginardi, the owners of the subject site and the applicants in these proceedings.

7. The development application was appropriately notified from 2 November to 16 November 2022, during which time six submissions were received. The parties submit, and I accept, that the relevant matters raised in these submissions have been adequately taken into consideration.

8. Pursuant to the Inner West Local Environmental Plan 2022 (IWLEP), the subject site is zoned R1 General Residential, within which development for the purpose of a dwelling house is permitted with consent. The proposed development is consistent with the objectives of this zone.

9. Demolition works are permissible with consent under IWLEP cl 2.7.

10. There is no applicable height of buildings control that applies to the site under IWLEP cl 4.3.

11. IWLEP cl 4.4 prescribes a maximum floor space ratio (FSR) for the site of 0.9:1, which the proposal meets with an FSR of 0.88:1.

12. Pursuant to IWLEP cl 4.3C, which applies to the site, the proposed development must result in a landscaped area comprising at least 15% of the site area, and must not have a site coverage that exceeds 60% of the site area. Although the proposed development exceeds the minimum landscaped area requirements with a provision of 20.8% (47.2m²), it exceeds the maximum site coverage by 3.4% (7.6m²).

13. IWLEP cl 4.6(3) requires a written request to justify the contravention of the FSR development standard. This written request must demonstrate that compliance with the landscaped area development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. To that end, the applicant has submitted a written request prepared by James Lovell and Associates Pty Ltd, dated 31 October 2023 (the written request). Pursuant to IWLEP cl 4.6, I am satisfied that:

1. The written request demonstrates that compliance with the landscape area development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the R1 General Residential Zone and the Landscaped Areas development standard, notwithstanding the non-compliance with the standard.

2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that:

1. The breach of the maximum site coverage is minor and is countered by the substantial exceedance of landscaped area.

2. The exceedance of site coverage does not result in any adverse environmental impacts

3. The proposed development has been carefully designed to retain the existing heritage item while meeting all other applicable development standards established in the IWLEP.

3. The contravention is therefore justified by an appropriate design response to site constraints, the lack of adverse environmental impacts resulting from the non-compliance, and by the proposed development achieving the objective of the development standard notwithstanding the numerical non-compliance.

4. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

14. The site is located within a heritage conservation area (HCA) and the existing dwelling is a listed heritage item under the IWLEP (Item I748). Additionally, the site is located within the vicinity of several local heritage items. Subsequently, IWLEP cl 5.10 and Sch 5 apply to the site. Pursuant to cl 5.10(2), the development application seeks consent for works to the heritage item and, pursuant to cl 5.10(5) the Respondent has requested a heritage management document, which is provided in the form of the Statement of Heritage Impact prepared by Cracknell & Lonergan Architects Pty Ltd dated 31 March 2022. Based on this, the Joint Report of Heritage Experts filed with the Court and the parties’ submissions, I accept that the objectives of IWLEP cl 5.10 are met.

15. Pursuant to IWLEP cl 6.1, the site is mapped as containing Class 5 acid sulfate soils and is located within 500m of a site that is mapped as Class 2 acid sulfate soils. However, as confirmed by the parties’ submission and the architectural drawings in the amended application, the proposed works will not lower the watertable by more than 1m and subsequently cl 6.1(3) does not apply to the development.

16. The parties submit and I accept that, in relation to earthworks, the matters listed in IWLEP cl 6.2(3) have been considered in the assessment of this proposed development and the proposed earthworks will not result in any unacceptable impacts on the matters listed in cl 6.2.

17. Pursuant to IWLEP cl 6.3, the parties submit, and I accept that the stormwater of the proposed development, as detailed in the stormwater concept plans, adequately meets all the requirements listed in cl 6.3(3).

18. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Statement of Environmental Effects (SEE) and the parties’ submission, I accept that the site has been historically used for residential purposes and there are no known actions that may have led to contamination of the subject site. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the site is suitable for its intended purpose.

19. A BASIX certificate has been filed with the amended application in accordance with State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004.

20. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the proposed development as it seeks to remove two existing trees on site. Based on the parties’ submission and the assessment in the Arboricultural Impact Assessment & Tree Protection Plan prepared by Ents Tree Consultancy dated 15 March 2022, I accept that the removal of these two trees is acceptable subject to the planting of a suitable replacement tree, which is required as a condition of consent.

21. For these reasons, 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.

22. As the parties’ decision is one 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.

23. The Court notes:

1. The Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA/2022/0850 in accordance with the following amended plans (Amended Development Application):

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
1.	Drawing No. 081-001 Revision A	Site Analysis	Brad Inwood Architects	17 October 2023
	Drawing No. 081-103 Revision B	Demolition Plan		01 November 2023
	Drawing No. 081-104 Revision B	Demolition Elevations		01 November 2023
	Drawing No. 081-608 Revision A	BASIX 01		17 October 2023
	Drawing No. 081-608 Revision A	BASIX 02		17 October 2023
	Drawing No. 081-701 Revision B	FSR Calculations		30 October 2023
	Drawing No. 081-702 Revision B	Site Coverage Calculations		30 October 2023
	Drawing No. 081-703 Revision B	Landscape Calculations		30 October 2023
	Drawing No. 081-801 Revision B	Shadows 9AM June 21		31 October 2023
	Drawing No. 081-802 Revision B	Shadows 12PM June 21		31 October 2023
	Drawing No. 081-803 Revision B	Shadows 3PM June 21		31 October 2023
Reports / documents
2	Written Request to Vary the Site Coverage Control (Ref: 23130/4.6/4)		James Lovell and Associates	31 October 2023

24. The Court orders:

1. Leave is granted to the Applicant to rely on the Amended Development Application in accordance with the documents listed at [23(1)].

2. The Applicant’s clause 4.6 written request dated 31 October 2023 prepared by James Lovell and Associates seeking to grant consent in contravention of clause 4.3C(3) of the Inner West Local Environmental Plan 2022 is upheld.

3. The Appeal is upheld.

4. Development Application No. DA/2022/0850, as amended, for the partial demolition of an existing dwelling and construction of a new 2-storey dwelling with basement storage and tree removal on land legally described as Lot 1 in DP1283531, also known as 2 Duke Street, Balmain East, NSW, 2041, is determined by the grant of development consent subject to the conditions at Annexure A.

E Washington

Acting Commissioner of the Court

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Annexure A (210771, pdf)

Decision last updated: 16 November 2023