Hardy v Inner West Council

[2024] NSWLEC 1383

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hardy v Inner West Council [2024] NSWLEC 1383

Hearing dates:

Conciliation conference held 17 and 18 June 2024

Date of orders:

05 July 2024

Decision date:

05 July 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA/2023/0358 and rely upon the amended plans referred to at Annexure A.

(2) The appeal is upheld.

(3) Consent is granted to Development Application DA/2023/0358 (as amended) for the demolition of a portion of the existing roof and addition of a new part storey at 6 Clifton Street, Balmain East, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – single dwelling house – cl 4.6 written request – floor space ratio – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38

Inner West Local Environmental Plan 2022, cll 2.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ch 6, ss 6.2, 6.7, 6.9, 6.28

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

Category:

Principal judgment

Parties:

Simon Hardy (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
G Christmas (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s):

2023/353449

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), brought by Simon Hardy (the Applicant), against the refusal of Development Application DA/2023/0358 (the DA) by Inner West Council (the Respondent). At the time of its lodgement on 18 May 2023, the DA sought consent for part demolition, alterations and additions to the existing dwelling house for a part third storey addition with roof terrace, at 6 Clifton Street, Balmain East (the site).

2. The Court arranged a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 and 18 June 2024. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of note, the DA has been amended by agreement between the parties to resolve each of the contentions initially raised by the Respondent. These contentions included adverse heritage impacts, exceedance of the development standard for floor space ratio (FSR), inconsistency with streetscape, bulk and scale, visual and acoustic privacy and cross viewing impacts, amongst other contentions.

5. Agreed design amendments have been made to improve the DA’s relationship to the site and its context thereby resolving each of the Respondent's contentions. In summary, these amendments improve the presentation of the proposed dwelling to the primary streetscape and its heritage context, restore a sense of a primary roof form familiar to the local area, and reduce the proposed bulk and scale of the DA to reduce cross viewing and other off site impacts.

6. 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 amended DA.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

8. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

9. The DA was publicly notified from 26 May to 9 June 2023. One submission was received by the Respondent raising concerns for noise and vibration impacts upon the nearby Nicholson Street Public School and potential conflicts with construction vehicle movements.

10. The parties agree, and I am satisfied, that the amended DA and agreed conditions of consent address the matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately considered.

11. The parties agree, and I am satisfied, that the Inner West Local Environmental Plan 2022 (IWLEP) is the relevant local environmental planning instrument. The site is zoned R1 General Residential and the proposed development - characterised as a dwelling house - is permissible with consent.

12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the IWLEP, the amended DA is consistent with the R1 General Residential zone objectives, which include to provide for the housing needs of the community, to provide for a variety of housing types and densities, and to provide residential development that maintains the character of built and natural features in the surrounding area.

13. The parties agree, and I am satisfied, that all principal development standards of the IWLEP have been met by the amended DA with the exception of cl 4.4 - Floor space ratio (FSR).

14. In this instance, cl 4.6(3) of the IWLEP requires consideration of a written request from the Applicant demonstrating that compliance with each of these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

15. Clause 4.6(4) of the IWLEP requires the consent authority to be satisfied that each of the Applicant’s written requests has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

16. Additionally, cl 4.6(4)(b) of the IWLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

17. As required by cl 4.6 of the IWLEP, the Applicant has provided a written request prepared by BBC Consulting Planning and dated April 2024 seeking to vary the development standard for FSR as set out at cl 4.4(2B) of the IWLEP.

18. The parties agree, and I am satisfied, that this written request adequately justifies the proposed variance to the FSR development standard of 0.9:1 for the following reasons:

1. The site comprises an existing two-storey dwelling which currently exceeds the FSR development standard and the amended DA proposes to increase this exceedance.

2. The agreed design of the amended DA modifies the proposed roof form in a manner that adopts a more familiar gable form that is compatible with the heritage conservation area.

3. The FSR exceedance brings with it no material increase in impacts or diminution of amenity enjoyed by neighbouring properties, adequately resolving earlier concerns for cross viewing, acoustic privacy and off site impacts.

4. The objectives of the IWLEP Zone R1 General Residential land use zone include to provide for the housing needs of the community, to provide for a variety of housing types and densities, and to provide residential development that maintains the character of built and natural features in the surrounding area. I am satisfied the amended DA meets these objectives.

5. The objectives of cl 4.4 of the IWLEP include to establish a maximum FSR to enable appropriate development density, to ensure development density reflects its locality, to minimise adverse impacts on local amenity, and to increase the tree canopy and to protect the use and enjoyment of private properties and the public domain. I am satisfied the amended DA meets these objectives.

19. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.

20. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the IWLEP - Heritage conservation - the site does not comprise a listed heritage item, however it is located within the Balmain East Heritage Conservation Area and is situated within close proximity to a number of listed heritage items.

21. The Applicant has provided a heritage impact assessment letter, prepared by heritage consultants Heritage 21, dated 23 April 2024 and a Statement of Heritage Impact also prepared by Heritage 21 and dated March 2023. These documents address the impacts the DA has on the heritage conservation area and upon nearby heritage items. The parties agree, and I am satisfied, that the amended DA creates no unreasonable detrimental heritage impacts.

22. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the IWLEP - Acid sulfate soils - the site is mapped within an area identified as class 5 acid sulfate soils area. However, the amended DA does fall within the description of development set out at cl 6.1(2).

23. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the IWLEP - Earthworks, the DA proposes no excavation that would otherwise form a matter for consideration pursuant to cl 6.2(2).

24. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the IWLEP - Stormwater management - the amended DA provides for stormwater drainage and a rainwater tank, and agreed conditions of consent are imposed to address those matters set out at cl 6.3(3).

25. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

26. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument. Chapter 6 of SEPP BC deals with water catchments. The site is identified within the Sydney Harbour Catchment and also on the relevant Foreshores and Waterways Area Map.

27. The parties agree, and I am satisfied, that the amended DA is consistent with those matters set out at s 6.2(2) of SEPP BC and has been designed to not impact unreasonably on the quality and quantity or water entering natural waterbodies.

28. The parties agree, and I am satisfied, that the amended DA is consistent with those matters set out at s 6.7(2) of SEPP BC and has been designed to not impact unreasonably on aquatic ecology.

29. The parties agree, and I am satisfied, that the amended DA is consistent with those matters set out at s 6.9(2) of SEPP BC and has been designed to not impact public access to and from natural waterbodies and is not sited on land forming part of the foreshore.

30. The parties agree, and I am satisfied, that the amended DA is consistent with those matters set out at s 6.28(2) of SEPP BC and has been designed to be consistent with the character and functions of a working harbour and will maintain the visual qualities of the foreshores, waterways and islands.

31. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (BASIX Sustainability Index — BASIX) 2004. Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate number A484504_05 dated 20 June 2024 has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

32. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

33. The Court notes that:

1. Pursuant to ss 37 and 38 of the EPA Reg, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 25 June 2024.

Orders

34. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA/2023/0358 and rely upon the amended plans referred to at Annexure A.

2. The appeal is upheld.

3. Consent is granted to Development Application DA/2023/0358 (as amended) for the demolition of a portion of the existing roof and addition of a new part storey at 6 Clifton Street, Balmain East, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

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Decision last updated: 05 July 2024