Hessey v Inner West Council

[2022] NSWLEC 1678

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hessey v Inner West Council [2022] NSWLEC 1678

Hearing dates:

Conciliation conference 1-2 December 2022

Date of orders:

02 December 2022

Decision date:

02 December 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA/2021/1303 for alterations and additions to the existing dwelling house, demolition and construction of a new garage with a studio above, landscaping and required site works at 66 Cardigan Street, Stanmore, is determined by the grant of consent subject to the conditions in Annexure ‘A’.

Catchwords:

APPEAL – development application – alterations and additions to an attached dwelling in heritage conservation area – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1

Inner West Local Environmental Plan 2022, cl 1.8A

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

Marrickville Local Environmental Plan 2011, cll 5.10, 6.5

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Category:

Principal judgment

Parties:

Annika Terese Hessey (First applicant)
Blake Kelvin Lowry (Second applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
T Hale SC (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Maddocks (Respondent)

File Number(s):

2022/242240

Publication restriction:

No

Judgment

1. COMMISSIONER: The part of Cardigan Street in Stanmore that is north of Salisbury Road is a heritage conservation area that is characterised by single storey attached and detached dwellings from the late Victorian and Federation period. At 66 Cardigan Street, Ms Hessey and Mr Lowry, the applicants, seek development consent for alterations and additions to their attached dwelling, including an upper level addition to the dwelling house and the construction of a detached rear garage with studio above. They lodged a development application with Inner West Council (the Council) on 22 December 2021, which was refused on 22 July 2022. These proceedings are an appeal against that decision, lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. Pursuant to s 34AA(1)(b) of the Land and Environment Court Act 1979 (LEC Act), the Court ordered that the appeal be dealt with pursuant to s 34AA(2). Consequently, the Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the LEC Act. The conciliation conference commenced on 1 and 2 December 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was subsequently filed on 2 December 2022, following the lodgement of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amendments made to the development application reduce the extent of the upper floor addition so as to reduce the visibility of the addition from the public domain, and also reduce the area of the garage at the ground floor to provide additional private open space. The proposed development in the amended development application is for alterations and additions to the existing dwelling house including an upper level addition, demolition and construction of a new garage with a studio above, and associated landscaping and site works.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out a range of statutory planning provisions, a small number of which apply to the proposed development. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R2 low density residential zone in which the site is located, pursuant to the Marrickville Local Environmental Plan 2011 (MLEP). The MLEP continues to apply to the proposed development by virtue of the savings provision in cl 1.8A of the Inner West Local Environmental Plan 2022.

• The proposed development complies with the applicable development standards for height and floor space ratio that arise pursuant to the MLEP.

• The site on which the development is proposed is located within the Cardigan Street Heritage Conservation Area. Based on the joint report of the heritage experts filed on 14 November 2022, the heritage impact statement dated November 2021, and the agreement of the heritage experts on the amendments to the architectural plans, I am satisfied that the proposed alterations and additions will not have an adverse effect on the heritage significance of the heritage conservation area, in accordance with the consideration required by cl 5.10(4) of the MLEP.

• Clause 6.5 of the MLEP concerns development in areas subject to aircraft noise, and applies to the site. As a result of the Aircraft Noise Intrusion Assessment dated 11 October 2021, which accompanied the Class 1 Application, I have considered the matters required to be considered in cl 6.5(3) of the MLEP.

• The development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Sch 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes:

1. That Inner West Council, as the relevant consent authority, has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application 8.2021.196.1 with the plans and documents listed in Annexure A; and

2. The Applicant uploaded the following documents onto the NSW Planning Portal on 2 December 2022:

1. Drawing No. 00-00 – Cover Page, Revision D;

2. Drawing No. 02-01 – Site Plan/Site Analysis Plan, Revision D;

3. Drawing No. 02-02 – Ground Floor Plan, Revision D;

4. Drawing No. 02-03 – First Floor Plan, Revision D;

5. Drawing No. 02-04 – Roof Plan, Revision D;

6. Drawing No. 02-05 – West Elevation, Revision D;

7. Drawing No. 02-06 – North Elevation, Revision D;

8. Drawing No. 02-07 – East Elevation, Revision D;

9. Drawing No. 02-08 – Elevations - Studio, Revision D;

10. Drawing No. 02-09 – South Elevation, Revision D;

11. Drawing No. 02-10 – Section A, Revision D;

12. Drawing No. 02-11 – Section B & C, Revision D;

13. Drawing No. 02-12 – Ground Floor Demolition Plan, Revision D;

14. Drawing No. 02-13 – Roof Demolition Plan, Revision D;

15. Drawing No. 03-10 – Waste Management Plan, Revision D;

16. Drawing No. 04-01 – Schedule of Materials and Finishes, Revision D; and

17. Drawing No. 04-22 – Site Line Diagram, Revision D.

9. The Court orders that:

1. The appeal is upheld.

2. Development application DA/2021/1303 for alterations and additions to the existing dwelling house, demolition and construction of a new garage with a studio above, landscaping and required site works at 66 Cardigan Street, Stanmore, is determined by the grant of consent subject to the conditions in Annexure ‘A’.

J Gray

Commissioner of the Court

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Annexure A 

Decision last updated: 02 December 2022