John Greenwood and Associates v Inner West Council

[2023] NSWLEC 1246

Land and Environment Court

New South Wales

Medium Neutral Citation:

John Greenwood and Associates v Inner West Council [2023] NSWLEC 1246

Hearing dates:

Conciliation conference on 15 February 2023

Date of orders:

23 May 2023

Decision date:

23 May 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The orders of the Court are:

(1)   The Applicant is granted leave to amend Development Application No. 2022/0029 and rely upon the amended plans and documents referred to in Condition 1 to Annexure A.

(2)   The appeal is upheld.

(3)   Development Consent is granted to Development Application No. 2022/0029 for ground and first floor alterations and additions, including new garage, new detached studio and shed structure to rear and associated works at 19 North Street Balmain, subject to the conditions contained at Annexure A.

Catchwords:

DEVLEOPMENT APPLICATION –– change to deferred commencement condition – garage – amenity impacts on streetscape – conciliation agreement between the parties – order

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Environmental Planning and Assessment Regulation 2021, Sch 6, s 3

Inner West Local Environmental Plan 2022, cl 1.8A

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

Leichhardt Local Environmental Plan 2013, cll 1.2, 4.3A, 4.4, 5.10, 6.1, 6.2, 6.4

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

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

Texts Cited:

Leichhardt Development Control Plan 2011

Category:

Principal judgment

Parties:

Universal Property Group Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
John Greenwood and Associates Pty Ltd (Applicant)
Inner West Council (Respondent)

Solicitors:
BCP Lawyers and Consultants (Applicant)
Inner West Council (Respondent)

File Number(s):

2022/259332

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the imposition of a deferred commencement condition by the Inner West Council (Council) on Development Application No DA/2022/0029 (the DA). In exercising the functions of a consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA was lodged by the Applicant on 20 January 2022. It sought development consent for ground and first floor alterations and additions, including new garage, new detached studio and shed structure to rear and associated works (Proposed Development) at 19 North Street, Balmain NSW 2041(Site).

3. The DA was notified for 14 days between 1 February 2023 and 15 February 2023 to surrounding properties. One (1) submission was received, from the owner of the property adjoining to the south, which raised the issues of solar access and privacy. The submission was provided to the Court.

The Proceedings

4. These proceedings are an appeal against the Inner West Local Planning Panel’s (IWLPP) imposition of a Deferred Commencement Condition 1 in its Deferred Commencement Approval dated 5 August 2022. The effect of the Deferred Commencement Condition was to require deletion of the proposed garage and associated access, and consequential modification of the development plans flowing from that deletion. The Condition also required a change to the proportions of Window W8.

5. The Applicant filed a Statement of Facts and Contentions on 17 October 2022. The Respondent filed their Statement of Facts and Contentions in Reply on 7 November 2022. The parties’ experts then discussed the issues during joint expert conferencing, with the main issues in the matter being the impacts of the proposed garage, vehicular access, and setbacks, in terms of the Leichhardt Development Control Plan 2011 (the DCP) controls, particularly streetscape, heritage significance of the Iron Cove Heritage Conservation Area, the desired future character of the Birchgrove Distinctive Neighbourhood and landscaped area in Leichardt Local Environmental Plan 2013 (LLEP).

6. Following joint conferencing, the Applicant’s expert provided the Respondent’s experts with the Amended Plans. The key amendments included:

1. Compliance with respect of the Landscaped Area development standard in LLEP;

2. The impact and visibility of the garage door has been reduced;

3. Landscaping has been improved in the front garden;

4. Amended fence detail has been provided improving the street presentation;

5. General facade improvements; and

6. Colours and materials have been improved.

7. As a result of the improved design for the garage and driveway area and enhanced street presentation, Council no longer contends that the proposed garage be deleted.

8. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act), at which I presided, on 15 February, which commenced in Court.

9. 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 would be acceptable to the parties, which included the Applicant submitting Amended Plans. The parties’ experts have considered the Amended Plans and are satisfied that they address all of the Respondent’s concerns. The signed agreement was filed on 18 May 2023 and is supported by a Joint Jurisdictional Note provided by the parties on the same date. The agreement involves the Court approving the application.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties agree that the proceedings ought to be disposed of by the Court in accordance with the Agreement between the parties under s 34(3) of the LEC Act.

11. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

Leichhardt Local Environmental Plan 2013

12. Although the Inner West Local Environmental Plan 2022 (IWLEP) commenced on 12 August 2022, and repealed the LLEP, the LLEP continues to have effect in relation to the DA. The DA was made, but not yet determined, before the IWLEP commenced, must therefore be determined as if the IWLEP had not commenced in line with cl 1.8A of the IWLEP.

13. The aims of the LLEP are set out in cl 1.2 and the Court can be satisfied that the development, as amended, is consistent with those aims.

14. The Land has a total area of 267.7m², is Zoned R1 – General Residential, and a dwelling is permissible with consent under the LLEP in that zone. The objectives of this zone are:

•  To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To improve opportunities to work from home.

•  To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

•  To provide landscaped areas for the use and enjoyment of existing and future residents.

•  To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

•  To protect and enhance the amenity of existing and future residents and the neighbourhood.

15. I am satisfied that the DA in its amended form is consistent with these zone objectives.

16. Clause 4.3A(3) of LLEP requires that development on a lot of greater than 235m² have a landscaped area of at least 20% and a maximum site coverage of 60%. The landscaped area in the amended plans is now 21%, and the proposed site coverage is 60%. I am satisfied from the evidence that both the landscaped area and site coverage requirements of the LLEP are met.

17. Clause 4.4(2) of LLEP establishes the maximum Floor Space Ratio (FSR) for development and refers to the maximum FSR noted within the ‘Floor Space Ratio Map’. However, subclause 2B(b) states that:

…

(b) on land shown edged red or green on the Floor Space Ratio Map is not to exceed—

…

(ii)  in the case of development on a lot with an area of 150 square metres or more but less than 300 square metres—0.9:1, or

…

18. As the subject site is on land Area 3 shown edged red, the relevant floor space ratio for this locality is 0.9:1 (with a maximum gross floor area of 240.93m²) and it is considered to be a ‘development standard’ for the purposes of the EP&A Act. The development is proposing a gross floor area of 224m² at a floor space ratio of 0.84:1 and I am satisfied from the evidence that the DA complies with the allowable FSR.

19. The land is in the Iron Cove Heritage Conservation Area (HCA), although is not a heritage item itself. The extent of the HCA is shown on the Heritage Map. Clause 5.10(4) of LLEP requires the effect of the proposed development on the heritage significance of the area concerned to be considered. A heritage impact statement by Anne Warr was submitted with the DA. The parties’ heritage experts have considered the effect of the proposed development on the heritage significance of the HCA and I am satisfied from their evidence that there will not be any unacceptable effects as a result of the Proposed Development. In addition, the design changes in the amended plans reduce the impact of the proposal on the HCA (Refer to Joint Heritage Expert Report, filed 2 February 2023)

20. Clause 6.1 of the LLEP deals with acid sulphate soils (ASS) and is addressed at page 9 of the Applicant’s Statement of Environmental Effects (that formed part of the Class 1 Application). The subject site is Class 5 ASS affected land, and the proposed works are not likely to raise or lower the water table. Thus, I am satisfied that further consideration under this clause is not triggered.

21. Clause 6.2 of the LLEP deals with earthworks. Minimal excavation is proposed. I am therefore satisfied that there are no matters under cl 6.2(3) that are required to be addressed other than erosion and sediment control, which is addressed in Condition 7.

22. Clause 6.4 of the LLEP deals with stormwater management and is addressed in the Applicant’s Water Management Statement (that formed part of the Class 1 Application) including a stormwater management plan. This is a minor development and stormwater issues are addressed by Condition 14, requiring minor amendments to the stormwater drainage concept plan to deal with specified matters prior to issue of a construction certificate. On this basis, I am satisfied that cl 6.4 of the LLEP has been addressed.

Inner West Local Environmental Plan 2022

23. The DA is to be determined as if the IWLEP had not commenced. However, the Court is required to take the provisions of the IWLEP into account as the new LEP is imminent. The newly enacted provisions have not substantially changed the planning regime for the Site, and there is no aspect in which the proposed development complies with the LLEP but would not comply with the IWLEP. In particular I note that:

1. The development is consistent with the aims of the IWLEP

2. The Site remains within Zone R1 – General Residential and dwelling houses remain permissible with consent. The development is consistent with the aims of the Zone

3. The landscaped area development standard for the Site remains the same

4. The FSR development standard for the site remains the same

5. There is no substantive change to the controls in respect of Heritage, acid sulfate soils, earthworks or, stormwater management as they apply to this development. The site remains within the Iron Cove Heritage Conservation Area.

Leichhardt Development Control Plan 2013

24. The Site is within the Birchgrove Distinctive Neighbourhood under the DCP. The neighbourhood boundaries are identified in Fig C61 and Section C2.2.2.6 (pages 366-369) outlines the landform, existing character, and desired future character of this neighbourhood. I note the Site is not within the Louisa Rd Sub-Area.

25. I am satisfied from the evidence that the Amended Plans have addressed Council’s concerns regarding consistency with the DCP controls for this neighbourhood.

26. The following additional controls are of relevance to assessment of the DA, although no issue of non-compliance arises in respect of the Amended Plans following consideration by the planning and heritage experts and imposition of the agreed conditions:

• Part C - Section C1.11 Parking

• Part C – Section C1.12 Landscaping

• Part C - Section 3 – Residential Provisions – Sections C3.1-3.9

• Part D – Section 2 – Resource recovery and waste management – Section D2.1-2.3 (See also Condition 6)

• Part E – Section E1.1 Approvals Process and Reports Required

• Part E – Section E1.2 Water Management (See also Condition 14)

State Environmental Planning Policy (Resilience and Hazards) 2021

27. Under s 4.6 of this State Environmental Planning Policy (Resilience and Hazards) 2021, the Consent Authority must consider matters relating to potential contamination. There is no evidence of contamination on the Site so further consideration is not triggered and I am satisfied that the requirements of the SEPP have been addressed.

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

28. Under State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation), the Amended Proposal is BASIX affected development, containing a BASIX affected building. An amended BASIX certificate dated 2 February 2023 has been provided to accompany the Amended Proposal which satisfies the requirement of the BASIX SEPP.

29. The Court notes:

1. The parties have reached an agreement in a conciliation conference conducted pursuant to section 34(3) of the Land and Environment Court Act 1979, as to a decision that the Court could have made in the proper exercise of its functions; and

2. Pursuant to clause 55 of the Environment Planning and Assessment Regulation 2000, the Council, as the relevant consent authority, has consented to the Applicant further amending Development Application No. 2022/0029 in accordance with the following amended documents (‘Amended Plans’) lodged on the NSW Planning Portal on 13 February 2023 and filed with the Court on 15 February 2023:

Plan Name	Author	Date
1.	Site Plan & Site Analysis	John Greenwood & Associates Pty Ltd	25/1/23
2.	Ground Floor Plan	John Greenwood & Associates Pty Ltd	25/1/23
3.	First Floor Plan	John Greenwood & Associates Pty Ltd	25/1/23
4.	Roof Plan	John Greenwood & Associates Pty Ltd	25/1/23
5.	East & West Elevations	John Greenwood & Associates Pty Ltd	25/1/23
6.	North & South Elevations	John Greenwood & Associates Pty Ltd	25/1/23
7.	Studio East & West Elevations	John Greenwood & Associates Pty Ltd	25/1/23
8.	Sections	John Greenwood & Associates Pty Ltd	25/1/23
9.	Landscape Plan	John Greenwood & Associates Pty Ltd	25/1/23
10.	Landscape Area Calculation Plan	John Greenwood & Associates Pty Ltd	25/1/23
11.	Materials & Finishes Schedule	-	25/1/23
12.	BASIX Certificate	John Greenwood & Associates Pty Ltd	2/2/23

Orders

30. The orders of the Court are:

1. The Applicant is granted leave to amend Development Application No. 2022/0029 and rely upon the amended plans and documents referred to in Condition 1 to Annexure A.

2. The appeal is upheld.

3. Development Consent is granted to Development Application No. 2022/0029 for ground and first floor alterations and additions, including new garage, new detached studio and shed structure to rear and associated works at 19 North Street Balmain, subject to the conditions contained at Annexure A.

L Sheridan

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 23 May 2023