Hobson v Inner West Council

[2024] NSWLEC 1246

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hobson v Inner West Council [2024] NSWLEC 1246

Hearing dates:

Conciliation conference on 8 and 9 May 2024

Date of orders:

14 May 2024

Decision date:

14 May 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to DA/2022/1022 for the demolition of existing structures and construction of a two-storey dwelling house with garage, landscaping and associated works at 1 Rose Street, Birchgrove, subject to conditions annexed here to and marked Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021

Inner West Local Environmental Plan 2022, cll 2.3, 2.7, 5.10, 6.2, 6.3

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

Category:

Principal judgment

Parties:

Adam Hobson (Applicant)
Inner West Council (Respondent)

Representation:

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

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

File Number(s):

2023/314283

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, related to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s refusal of development application DA/2022/1022 (DA). The DA sought consent for demolition of existing structures and the construction of a two-storey dwelling house with garage, landscaping and associated works on the property at 1 Rose Street, Birchgrove (site).

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 9 and 10 May 2024. I presided over the conciliation conference.

3. By the conclusion of the conciliation conference, the parties had come to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal, subject to amended plans, and granting consent to the DA subject to agreed conditions.

4. 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.

Jurisdiction

5. The parties’ decision involves the Court exercising the consent authority 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. The parties identified certain jurisdictional prerequisites of relevance in these proceedings and how they have been or could be satisfied in a jurisdictional statement, provided to the Court on 9 May 2024. In regard to jurisdiction and having regard to this statement, I find as follows.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

6. Pursuant to s 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I am advised by the parties that the respondent has considered whether the site is contaminated and, on account of the site being historically used for residential purposes with no known history of potentially contaminating uses and events, is satisfied that no further investigation of the site is warranted. On this basis, I am satisfied that the requirements of SEPP Resilience and Hazards are met.

Inner West Local Environmental Plan 2022 (IWEP)

7. I note the proposal is for permissible development in the applicable R1 General Residential zone in IWLEP. Demolition is permissible under cl 2.7.

8. I accept the advice of the parties that the proposal does not breach any development standards under IWLEP.

9. As the site falls within Birchgrove and Ballast Point Road Heritage Conservation Area, under cl 5.10(4), there is a need to consider the effect of the proposed development on the heritage significance of the area concerned. The heritage experts deliberated considerably in to coming to what was agreed to be an acceptable resolution of heritage-related concerns and coming up with agreed plan amendments and conditions to this end. I accept the agreed advice of the parties that the proposal is acceptable in regard to heritage conservation.

10. The site is classified as Class 5 acid sulphate soils land. While the site is located within 500m of Class 2 land, the parties advise in the jurisdictional statement that the triggering effects, otherwise requiring an acid sulphate soils management plan, do not apply.

11. In regard to stormwater management, development consent must not be granted unless the consent authority is satisfied in relation to the matters listed at cl 6.3(3)(a)-(c). The jurisdictional statement directly indicates that Council is satisfied in relation to each of these matters. With this advice, I too am satisfied in regard to each of the listed matters subject to the agreed conditions of consent.

Other matters

12. The parties advise the proposal was notified in accordance with requirements and a single objecting submission was received and that this submission has been considered in the finalisation of the agreement.

Conclusion

13. Based on the above details, 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. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

14. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

15. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notification

16. The Court notes that the Respondent, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending DA/2022/1022 in accordance with the documents listed below.

Amended Architectural Plans
Plan name	Drawing Ref	Revision	Date	Prepared by
site plan - existing	2108-00-00-01	Revision C	29.01.24	Ian Moore Architects
site analysis - existing	2108-00-00-02	Revision B	29.01.24	Ian Moore Architects
level 01 plan - existing	2108-00-01-01	Revision C	29.01.24	Ian Moore Architects
roof plan - existing	2108-00-01-02	Revision C	29.01.24	Ian Moore Architects
south-west elevation – street - existing	2108-00-02-01	Revision C	29.01.24	Ian Moore Architects
south-west elevation -courtyard - existing	2108-00-02-02	Revision C	29.01.24	Ian Moore Architects
south-east elevation – park - existing	2108-00-02-03	Revision C	29.01.24	Ian Moore Architects
south-east elevation - existing	2108-00-02-04	Revision C	29.01.24	Ian Moore Architects
north-east elevation - existing	2108-00-02-05	Revision C	29.01.24	Ian Moore Architects
north-west elevation - existing	2108-00-02-06	Revision C	29.01.24	Ian Moore Architects
section 01 - existing	2108-00-03-01	Revision B	04.07.22	Ian Moore Architects
section 02 - existing	2108-00-03-02	Revision C	23.01.24	Ian Moore Architects
level 01 plan - demolition	2108-01-01-01	Revision B	01.05.24	Ian Moore Architects
roof plan - demolition	2108-01-01-02	Revision B	01.05.24	Ian Moore Architects
site plan - proposed	2108-02-00-01	Revision D	01.05.24	Ian Moore Architects
level 01 plan - proposed	2108-02-01-01	Revision C	01.05.24	Ian Moore Architects
level 02 plan - proposed	2108-02-01-02	Revision C	01.05.24	Ian Moore Architects
roof plan - proposed	2108-02-01-03	Revision C	01.05.24	Ian Moore Architects
south-west elevation - street - proposed	2108-02-02-01	Revision D	01.05.24	Ian Moore Architects
south-west elevation - courtyard - proposed	2108-02-02-02	Revision D	01.05.24	Ian Moore Architects
south-east elevation - park - proposed	2108-02-02-03	Revision C	01.05.24	Ian Moore Architects
south-east elevation - proposed	2108-02-02-04	Revision D	01.05.24	Ian Moore Architects
north-east elevation - proposed	2108-02-02-05	Revision D	01.05.24	Ian Moore Architects
north-west elevation - proposed	2108-02-02-06	Revision D	01.05.24	Ian Moore Architects
section 01 - proposed	2108-02-03-01	Revision D	01.05.24	Ian Moore Architects
section 02 - proposed	2108-02-03-02	Revision D	01.05.24	Ian Moore Architects
sections 03 + 04 - proposed	2108-02-03-03	Revision D	01.05.24	Ian Moore Architects
sections 05 + 06 - proposed	2108-02-03-04	Revision D	01.05.24	Ian Moore Architects
colours, materials and finishes schedule	2108-14-01-01	Revision D	01.05.24	Ian Moore Architects
south-west elevation - street - proposed	2108-14-02-01	Revision C	01.05.24	Ian Moore Architects
south-west elevation - courtyard - proposed	2108-14-02-02	Revision C	01.05.24	Ian Moore Architects
south-east elevation - park - proposed	2108-14-02-03	Revision C	01.05.24	Ian Moore Architects
south-east elevation - proposed	2108-14-02-04	Revision C	01.05.24	Ian Moore Architects
north-east elevation - proposed	2108-14-02-05	Revision C	01.05.24	Ian Moore Architects
north-west elevation - proposed	2108-14-02-06	Revision C	01.05.24	Ian Moore Architects
floor area diagrams – existing + proposed	2108-15-01-01	Revision C	23.01.21	Ian Moore Architects
View from east - proposed	2108-15-02-01	Revision D	01.05.24	Ian Moore Architects
Shadow diagrams	2108-15-03-02	Revision C	01.05.24	Ian Moore Architects
stormwater drainage diagram- proposed	2108-15-04-01	Revision B	23.01.24	Ian Moore Architects
soil and water management plan	2108-15-05-01	Revision A	04.07.22	Ian Moore Architects
Building location zone – level 01 plan	2108-15-601-01	Revision A	23.01.24	Ian Moore Architects
Building location zone – roof plan	2108-15-06-02	Revision A	23.01.24	Ian Moore Architects
Amended Landscape Plans
Plan name	Drawing ref	Revision	Date	Prepared by
Site Calculations | DA Notes	L101	Revision B	01.05.24	Outdoor Establishments
Landscape Plan | Level 01	L102	Revision A	01.05.24	Outdoor Establishments
Landscape Plan | Level 02	L103	Revision B	01.05.24	Outdoor Establishments
Plant Schedule | Plant Imagery	L104	Revision B	01.05.24	Outdoor Establishments
Reports
Report name	Ref	Revision	Date	Prepared by
Schedule of Amendments	-	Revision A	03.04.24	Ian Moore Architects
Heritage Impact Assessment Report	-	March 2024	Zoltan Kovacs Architect
Building and Timber Pest Inspection Report	-	-	05.06.18	Jim’s Building Inspections
Existing Structural Analysis Scope of Work and Cost Estimate	DP_0041	-	12.12.23	Bright Build
Structural Engineering Report	-	-	07.12.23	Cantilever Consulting Engineers
BCA Assessment Report	P24007-BCA-r1	04.03.24	BCA Clarity
Arboricultural Impact Assessment	1RSB12/1/24	-	12.01.24	Hugh the Arborist
Response to Contention 1(e) of Council’s Statement of Facts and Contentions	-	-	05.03.24	Ian Moore Architects
Locality roof form assessment and statement	-	-	02.04.24	Ian Moore Architects
Design Statement	-	-	22.04.24	Ian Moore Architects
Landscape Design Statement	-	-	03.05.24	Outdoor Establishments
Photomontages	-	-	April 2024	Ian Moore Architects

Orders

17. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to DA/2022/1022 for the demolition of existing structures and construction of a two-storey dwelling house with garage, landscaping and associated works at 1 Rose Street, Birchgrove, subject to conditions annexed here to and marked Annexure A.

Peter Walsh

Commissioner of the Court

Annexure A

Decision last updated: 14 May 2024