Joyce v Inner West Council

[2022] NSWLEC 1578

Land and Environment Court

New South Wales

Medium Neutral Citation:

Joyce v Inner West Council [2022] NSWLEC 1578

Hearing dates:

4 and 5 October 2022

Date of orders:

26 October 2022

Decision date:

26 October 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)   The appeal is upheld;

(2)   Development Consent is granted to DA 2021/0940 to demolish part of the premises and extend the garage, carry out alterations to the dwelling, construct a single storey studio in the rear yard and install a pool, subject to conditions contained in Annexure ‘A’ to this judgment.

Catchwords:

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

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

Inner West Local Environmental Plan 2022, cll 1.8A, 2.3

Land and Environment Court Act 1979, s 34

Marrickville Local Environmental Plan 2011, cll 2.3, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.4

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

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

Texts Cited:

Land and Environment Court of NSW COVID-19 Pandemic Arrangements Policy (April 2021)

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Kenton Joyce (First Applicant)
Megan Joyce (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor)(Applicants)
P Brown (Solicitor)(Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/115666

Publication restriction:

No

Judgment

1. COMMISSIONER: Kenton Joyce and Megan Joyce (the Applicants) have appealed the refusal by Inner West Council (the Respondent) of their development application DA 2021/0940 seeking consent for part demolition of an existing dwelling and garage and extension of the garage along with alterations and additions to the dwelling house, construction of a studio and installation of a swimming pool (the proposed Development) a t58 Beauchamp Street, Marrickville, also identified as Lot 580 in DP 606234 (the Subject Site).

2. More specifically, the proposed Development includes:

1. the demolition of part of the existing garage situated upon the front boundary of the Subject Site;

2. extension of the garage into the Subject Site;

3. minor alterations to the semi-detached dwelling house;

4. construction of a single-storey detached studio in the rear yard;

5. installation of a swimming (lap) pool; and

6. associated landscaping including a low- level planter box upon the concrete roof to the new garage.

3. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

4. The Proposed Development was notified in accordance with the provisions of Marrickville Development Control Plan 2011 (MDCP) between 21 October 2021 and 4 November 2021, and one submission was received in response to the notification.

5. On 4 and 5 October 2022, the Parties participated in a s 34AA conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s development application, subject to conditions.

6. The conciliation conference was convened in a manner consistent with the Land and Environment Court’s COVID-19 Pandemic Arrangements Policy. A site inspection was undertaken prior to the conciliation conference being convened.

7. Two objectors made submissions during the site view and identified concerns in relation to the potential amenity impacts arising from the bulk/scale of the Proposed Development.

8. At the conciliation conference following the site view the Parties reached 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 and granting consent to the Applicant’s development application, subject to conditions.

9. 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.

10. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. at the date of lodgement of development application DA/2021/0459, development on the Subject Site was subject to the provisions of Marrickville Local Environmental Plan 2011 (MLEP), and in relation to those provisions;

1. MLEP was recently repealed, and its provisions replaced by those of Inner West Local Environmental Plan 2022 (IWLEP), but the operation of MLEP with respect to the Proposed Development is saved by cl 1.8A of IWLEP;

2. the Subject Site is zoned R2 Low Density Residential under the provisions cl 2.3 of both MLEP and IWLEP, and the Proposed Development is permitted within the R2 zoning of the Subject Site.

2. in relation to the provisions of MLEP:

1. clause 4.3 establishes a maximum height of buildings (HoB) development standard on the Subject Site of 9.5m, and the height of the Proposed Development does not exceed the 9.5m HoB development standard;

2. clause 4.4 provides a floor space ratio (FSR) of the Proposed Development complies with that FSR development standard

3. clause 6.1 concerns acid sulfate soils and in relation to this:

1. the Subject Site is mapped as Class 5 acid sulphate soils and is similarly mapped as Class 5 Acid Sulfate Soils under the IWLEP 2022;

2. the assessment criteria applicable to the Proposed Development under cl 6.1(2) is consistent under both MLEP 2011 and IWLEP 2022;

3. the Subject Site is located within 500m of adjacent Class 1, 2, 3 or 4 land’ but that land is not ‘below 5m Australian Height Datum’ and nor is it likely to involve works ‘by which the water table is likely to be lowered below 1m Australian Height Datum on adjacent Class 1, 2, 3 or 4 land’ largely because the existing garage slab level at 25.71AHD (which is proposed to be maintained by the proposed garage extension) is some 20 metres above the 5m AHD parameter; and so

4. the requirement under cl 6.1(3) of MLEP and IWLEP to prepare an acid sulphate spoils management plan is not engaged by the Proposed Development;

4. clause 6.2 of IWLEP concerning earthworks is a matter for consideration in relation to the Proposed Development as excavation is required and therefore the consent authority must "consider" the matters in clause 6.2(3), and in relation to this:

1. the considerations under clause 6.2(3) are consistent in both MLEP and IWLEP; and

2. the Parties advise, and I accept, that the extent of excavation does not warrant geotechnical investigation and the Applicant’s development application has provided sufficient information to address the relevant matters in cl 6.2(3) which require consideration under both the MLEP and IWLEP, and those matters have been considered;

5. the provisions of clause 6.3 in relation to stormwater management, and in relation to this:

1. clause 6.3 of MLEP was repealed; but

2. the provisions of cl 6.3 of IWLEP are a matter for consideration in this appeal, and these apply to all residential lands;

3. the consent authority must "consider" the matters in cl 6.3(3);

4. the Proposed Development, as amended, maximises the extent of water permeable surfaces (including desirable deep soil areas within the front setback) and accordingly the Parties advise, and I agree, that the provisions of cl 6.3(3) have been satisfied;

6. clause 6.4 concerns terrestrial biodiversity, and in relation to this:

1. the Subject Site falls within the land identified as ‘Biodiversity’ on the Natural Resource Biodiversity Map under the MLEP and IWLEP and so the provisions of cl 6.4 apply to the Proposed Development;.

2. the objectives of cl 6.4 are consistent across both the MLEP and IWLEP instruments, as are the relevant considerations in cl 6.4(3) save for the additional consideration at cl 6.4(3)(b) of IWLEP which requires the consent authority to consider any “appropriate measures to avoid, minimise or mitigate the impacts of the development”;

3. the further consideration at cl 6.4(3)(b) of IWLEP removes a standard in relation to which the consent authority was required to reach a threshold level of satisfaction in cl 6.4(4)(c) “if that impact cannot be minimised-the development will be managed to mitigate that impact”.

4. the specific matters to be considered by the consent authority are set out in clause 6.4(3) and 6.4(4) in both MLEP and IWLEP and include potential impacts on the environment arising from the Proposed Development.

5. the Applicant’s proposed building works do not give rise to any demonstrable impacts upon the existing ecology or upon biodiversity;

6. the Parties advise, and I agree, that the Proposed Development will improve biodiversity outcomes on the Subject Site because the Parties’ agreed conditions of development consent require the planting of an additional tree within the rear yard of the Subject Site which will complement biodiversity outcomes achieved through the Applicant’s landscaping plan;

7. on the basis of the above, and the provisions of cl 6.4 of MLEP and IWLEP are satisfied by the Proposed Development;

3. the Proposed Development is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), and in relation to this the Applicant has been provided BASIX Certificate number A429875_02 dated 2 October 2022 in respect to the amended plans, in compliance with the relevant provisions of SEPP BASIX.

4. in relation the provisions of cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H), the parties advise, and I am satisfied, that Proposed Development does not involve a change in use of the Subject Site and the Respondent’s records confirm that the past and current use of the Subject Site as a dwelling house/semi-detached dwelling house, such that the provisions of cl 4.6 of SEPP R&H are satisfied;

5. the Parties have confirmed that the relevant provisions of MDCP have been considered in relation to the Proposed Development, and I am satisfied that there is no provision of MDCP that would form a basis for refusal of the Proposed Development, including those relating to the mitigation of potential amenity impacts on neighbouring properties;

6. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act including in relation to the submissions of the objectors which is a relevant consideration under section 4.15(1)(d) of the EP&A Act.

11. Having considered the advice of the Parties, provided above at [10], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

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

3. approval of the Proposed Development is in the public interest.

12. 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.

13. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am 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 Court notes that:

1. Inner West Council, as the relevant consent authority, has agreed, under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA 2021/0940 in accordance with the documents listed below and which are also set out in condition 1 of the Parties’ agreed Conditions of Consent at Annexure A to this judgment:

Drawing Title	Drawing Number	Revision	Date	Prepared by
Amended Architectural Plans
Garage	SK-07	H	5.10.22	minimalist max design studio
Studio	SK-09	A	5.10.22	minimalist max design studio
Finishes Schedule	A	2 October 2022	minimalist max design studio
Landscape Plan	LDA 2204-1	C	5.10.2022
BASIX Certificate	A429875_02	2 October 2022

2. the amended development application documents listed above were lodged on the NSW planning portal on 7 October 2022;

3. the amended development application was filed with the Court on 7 October 2022.

Orders

16. The Court orders that:

1. The appeal is upheld;

2. Development Consent is granted to DA 2021/0940 to demolish part of the premises and extend the garage, carry out alterations to the dwelling, construct a single storey studio in the rear yard and install a pool, subject to conditions contained in Annexure ‘A’ to this judgment.

…………………………..

M Chilcott

Commissioner of the Court

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Decision last updated: 26 October 2022