Harwood v Inner West Council

[2021] NSWLEC 1057

Land and Environment Court

New South Wales

Medium Neutral Citation:

Harwood v Inner West Council [2021] NSWLEC 1057

Hearing dates:

Conciliation conference held on 8 December 2020

Date of orders:

5 February 2021

Decision date:

05 February 2021

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

See Orders below at [20]

Catchwords:

DEVELOPMENT APPLICATION – boarding house – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Marrickville Local Environmental Plan 2011

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy No 55—Remediation of Land

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (July 2020)

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Robert Harwood (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
P Murray (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Inner West Council (Respondent)

File Number(s):

2020/299422

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA-2020-0374. The application sought consent for the partial demolition and conversion of the existing single dwelling house, and additions over two levels to create a 12-room boarding house with manager’s accommodation and parking and landscaping works at 75 Douglas Street, Stanmore.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 8 December 2020. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams however a site view was undertaken prior to commencement of the conciliation conference.

4. Following the original conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions. That agreement had been reached following discussions between the parties since the application was filed and the preparation of amended plans that addressed the issues raised in the Council’s Statement of Facts and Contentions filed on 12 November 2020. The size of the boarding house has been reduced and the number of rooms now proposed is ten with five car and two motor cycle parking spaces and a cage to store five bicycles.

5. 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.

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

7. In that regard, the Parties agree, and I am satisfied, Marrickville Local Environmental Plan 2011 (LEP) is the relevant environmental planning instrument. The site is zoned R2 Low Density Residential, and the applicant relies on the provision of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH) to allow consent to be granted.

8. The proposal complies with all of the relevant development standards in Part 4 of the LEP and Division 3 of SEPPARH.

9. The site is not identified as an item of environmental heritage however it is it located within a Heritage Conservation area (cl 5.10 of the LEP). The design of the development has had regard to the provisions of that clause.

10. The site is not subject to bushfire hazard (cl 5.11 of the LEP) or identified as affected by acid sulfate soils (cl 6.1 of the LEP).

11. The site is not flood prone (cl 6.3 of the LEP) and stormwater issues have been satisfactorily addressed and the Council has imposed consent conditions to reflect its requirements.

12. The Council has not identified any contamination issues pursuant to the provisions of State Environmental Planning Policy No 55—Remediation of Land.

13. There are no draft planning proposals that apply to the land.

14. The evidence of the Council is that the development is consistent with the provisions and objectives of the Marrickville Development Control Plan 2011 (DCP) and that where variations are proposed, such variations are acceptable and do not result in any unreasonable impacts to adjoining properties or the environment. I accept that submission.

15. There are not any other matters contained in the Environmental Planning and Assessment Regulation 2000 that prevent grant of consent.

16. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and that the site is suitable for the development as proposed.

17. Having regard to the applicant's explanation of the amendments that have been made, I am satisfied that those amendments now address the concerns of the Council and that its proposed conditions satisfactorily address the issues raised by objectors.

18. Accordingly, I am satisfied that the proposal is in the public interest.

19. 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.

20. The Court orders that:

1. The Applicant is granted leave to amend the development application to rely upon the amended architectural plans and documents referred to in condition 1 of Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicants are to pay the Respondent's costs thrown away as a result of the amendment of the application in the amount of $2,500 payable within 28 days of this agreement.

3. The Appeal is upheld.

4. Development Application No. DA D/2020/374 to demolish part of the premises and carry out ground and first-floor alterations and additions and to use the premises as a boarding house is approved subject to the conditions in Annexure A.

…………………………..

Sue Morris

Acting Commissioner of the Court

Annexure A (324644, pdf)

Plans (7855861, pdf)

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Decision last updated: 05 February 2021