Jowono Investments Pty Ltd v Inner West Council

[2023] NSWLEC 1416

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jowono Investments Pty Ltd v Inner West Council [2023] NSWLEC 1416

Hearing dates:

Conciliation conference on 11 and 12 July 2023

Date of orders:

02 August 2023

Decision date:

02 August 2023

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA-2022/0387 for demolition of existing improvements and the construction of a two-storey dwelling with garage and associated landscaping at Lot 24 in DP 2623 and Lot 1 in DP 120942, also known as 2 Harney Street, Marrickville, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – 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

Marrickville Local Environmental Plan 2011, cll 2.2, 4.3, 4.4, 5.10, 5.21, 6.2, 6.5

Inner West Local Environmental Plan 2022, cl 1.8A

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

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

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Jowono Investments Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

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

Solicitors:
Bick & Steele (Applicant)
Apex Planning & Environmental Law (Respondent)

File Number(s):

2023/40660

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) against the refusal of development application DA-2022/0387 (the DA) for demolition of the existing dwelling, garage and tree removal, and construction of two-storey dwelling house at 2 Harney Street, Marrickville.

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 July 2023. I presided over the conciliation conference, which commenced with a site inspection.

3. Revised plans (dated 22 May 2023) constituting an amendment to the DA were submitted by the Applicant and these formed the basis of the discussion at the conciliation conference. Further revised plans were submitted on 11 July as an outcome of the conciliation conference.

4. Two objectors (from an adjoining property) attended the site and made submissions.

5. At the conciliation conference following the on-site view, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The hearing was adjourned and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA subject to conditions.

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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows:

1. The Marrickville Local Environmental Plan 2011 (MLEP) was repealed on 30 June 2022 by the Inner West Local Environmental Plan 2022 (IWLEP). Savings provisions at cl 1.8A of the IWLEP provide that the DA be determined under the provisions of the MLEP:

1. The subject site is zoned R2 – Low Density Residential Zone pursuant to the provisions of cl 2.2 of the MLEP; and

1. The proposed development is permissible with consent in the R2 Zone within which the subject site is located;

2. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out;

2. Pursuant to cl 4.3 of the MLEP in relation to the height of buildings (HoB), a development standard of building height of 9.5 metres is applicable to development of the subject site; and

1. The proposed building is within the maximum building height;

3. Pursuant to cl 4.4 of the MLEP the maximum floor space ratio (FSR) on the land is 0.7:1; and

1. The proposed development has an FSR of 0:56:1;

4. The provisions of cl 5.10 of the MLEP concern heritage conservation; and

1. The subject site is not located within a heritage conservation area and there are no heritage items on the land;

2. The subject site is within the vicinity of a nearby heritage item. Council has not requested a heritage assessment for the DA under cl 5.10(5) of the MLEP;

5. The provisions of cl 5.21 of the MLEP concern flood planning. The subject site is located in a flood planning area; and

1. The DA was accompanied by a Flood Impact Assessment Report which identified the Flood Planning Level for the subject site. All habitable rooms in the proposed development will be 500mm above the AEP 1% flood level;

6. The provisions of cl 6.2 of the MLEP concern earthworks; and

1. The DA proposes no material excavation of the subject site;

7. The provisions of cl 6.5 of the MLEP concern aircraft noise; and

1. This clause does not apply to the proposed development as the subject site is not within an ANEF contour of 20 or greater;

2. In relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the Applicant’s amended DA is accompanied by a BASIX certificate (Certificate No. A458490_03 prepared by Luxitecture dated 11 July 2023) which is consistent with the amended application;

3. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP):

1. The parties had advised, and I am satisfied, that the subject site has been used historically for residential purposes, and there is no proposed change of use, and therefore no requirement for any further site investigations to satisfy the provisions of s 4.6 of the Resilience SEPP;

9. Having considered the advice of the parties provided above at [8], I am satisfied that:

1. The Applicant’s DA can be approved having regard to the matters in s 4.15(1)(b)-(e) of the EPA Act;

2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been so satisfied; and

3. Approval of the proposed development Is in the public interest.

10. Further, 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.

11. 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.

12. 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.

13. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA-2022/0387 for demolition of existing improvements and the construction of a two-storey dwelling with garage and associated landscaping at Lot 24 in DP 2623 and Lot 1 in DP 120942, also known as 2 Harney Street, Marrickville, subject to the conditions of consent in Annexure A.

G Kullen

Acting Commissioner of the Court

2023.40660 Annexure A

**********