Landmark Investments Australia Pty Ltd v Inner West Council

[2024] NSWLEC 1534

Land and Environment Court

New South Wales

Medium Neutral Citation:

Landmark Investments Australia Pty Ltd v Inner West Council [2024] NSWLEC 1534

Hearing dates:

Conciliation Conferences on 2 July and 3 July 2024

Date of orders:

30 August 2024

Decision date:

30 August 2024

Jurisdiction:

Class 1

Before:

Kullen AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent DA/2022/0322 is modified in the terms in Annexure ‘A’.

(3) Development Consent DA/2022/0322 as modified by the Court is Annexure ‘B’.

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.17, 4.55, 8.9, 8.15

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

Environmental Planning and Assessment Regulation 2021, s 113

Roads Act 1993, s 138

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Former Ch 10, s 10.1

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

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

Inner West Local Environmental Plan 2022, cll 2.2, 4.3C, 4.4, 5.10, 6.1, 6.2, 6.3

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Landmark Investments Australia Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
C Norton (Respondent)

Solicitor:
Mills Oakley Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/441954

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns an application to modify Development Consent (DA-20-00198) for alterations and additions to [a] dwelling including ground and first floor, plus car stacker and landscaping at land described as Lot 13 in Deposited Plan 125, commonly known as 4 Caroline Street, Balmain (the site).

2. These proceedings are a Class 1 development appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the determination by Inner West Council of Modification Application No. MOD/2023/0137 (the Modification Application), which modified Development Consent No. DA-20-00198 (the Development Consent).

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification Application pursuant to s 4.55(2)(a) of the EPA Act. The final orders in this appeal, outlined in [47] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

History of the Proposed Modification to the Development Consent

4. The Development Consent (DA-20-00198) was granted on 6 December 2022, and approved alterations and additions to [a] dwelling including ground and first floor, plus car stacker and landscaping at land described as Lot 13 in Deposited Plan 125, commonly known as 4 Caroline Street, Balmain (the site).

5. The Development Consent included a deferred commencement condition as follows:

A. Parking and Access

Amended architectural plans and documentation must be submitted to and approved by Council, demonstrating the following:

Swept path diagrams which demonstrate parking access can be provided via Duncan Street to Jaggers Lane without requiring the relocation or removal of public infrastructure. The swept paths are to include the width of the carriage way and existing on-street parking spaces on the southern side of Duncan Street and west side of Colgate Street (it is noted that the width of an on-street parking space is 2400 mm). The swept paths must also include clearance distances of 300mm either side of the vehicle required by the Australian Standard AS2890.1, and prepared at a natural scale of 1:200.

In the event that Deferred Commencement Condition A (i) cannot be satisfied, amended architectural plans which illustrate that the proposed parking space, vehicular access and car stacker have been deleted.

Evidence of the above matter(s) must be submitted to Council within 2 years otherwise the Consent will not operate.

6. On 20 May 2023, the Applicant lodged the Modification Application with the Respondent (who accepted it on 24 May 2023) seeking the following:

1. Delete deferred commencement condition A relating to vehicular access to land and car stacker;

2. Introduce minor changes to the internal layout on the ground and first floor; including:

1. kitchen and dining location swapped;

2. laundry to become study;

3. level 1 bathroom;

4. skylight reduced;

5. ensuite added;

6. rainwater tank under deck added;

7. PV cells to roof of existing building added; and

8. viii.   parapet height adjusted to allow lift access

9. Add a basement with a home theatre and utility room; and,

10. Add a pool to the rear courtyard.

7. On 12 September 2023, the Inner West Council Planning Panel granted consent to the Modification Application and modified deferred commencement condition A as follows:

A. Parking and Access

Amended architectural plans and documentation must be submitted to and approved by Council, demonstrating the following:

Swept path diagrams which demonstrate parking access can be provided via Duncan Street to Jaggers Lane without requiring the relocation or removal of public infrastructure. The swept paths are to include the width of the carriage way and existing on-street parking spaces on the southern side of Duncan Street and west side of Colgate Street (it is noted that the width of an on-street parking space is 2400 mm). The swept paths must also include clearance distances of 300mm either side of the vehicle required by the Australian Standard AS2890.1, and prepared at a natural scale of 1:200.

In the event that Deferred Commencement Condition A (i) cannot be satisfied, amended architectural plans which illustrate that the proposed parking space, vehicular access and car stacker have been deleted.

No approval is given to vehicular access from Jaggers Lane. Amended architectural plans and documentation must be submitted to and approved by Council, demonstrating that the proposed parking space, vehicular access and car stacker are deleted. The area occupied by the car stacker is to be replaced with the landscaped are as defined in the Inner West Local Environmental Plan 2022.

Evidence of the above matter(s) must be submitted to Council within 2 years otherwise the Consent will not operate.

Current Proceedings

8. The Applicant, dissatisfied with the Respondent’s determination of the Modification Application, filed a Class 1 Appeal Application on 6 December 2023 under subs 4.55(8) of the EPA Act seeking to modify the Development Consent. Inner West Council is the Respondent to this appeal by virtue of s 8.15(4) of the EP&A Act.

9. The Applicant filed a Statement of Facts and Contentions (SOFAC) with the Court on 8 February 2024. A SOFAC in Reply prepared by the Respondent was filed with the Court on 13 March 2024. A Joint Expert Report (Arboricultural and Landscaping) was filed with the Court on 19 June 2024. A Joint Expert Report (Planning) was filed with the Court on 24 June 2024. A Joint Expert Report (Traffic) was filed with the Court on 27 June 2024. These joint expert reports were of assistance to the parties in coming to an agreed position through the conciliation conference about the proposed development.

Section 34AA(2) conciliation conference

10. The Court arranged a conciliation conference for the Modification Application under subs 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 and 3 July 2024. I presided over the conciliation conference, which commenced on site. A number of submitters spoke at the on-site view (refer to paragraph [26] below).

11. Over the course of the first day of the conciliation conference, the parties advised that they were attempting to reach an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The Applicant agreed to amend the Modification Application in response to a number of concerns raised by Council, and these amended plans form part of the s 34 agreement.

12. The parties advise that amendments agreed to in the proposed development can be summarised as follows:

1. Car stacker structure thickness is now shown on the architectural plans;

2. Installation of a bollard to be centrally placed on Jaggers Lane in a location approximately 2.5 metres to the south of the southern property boundary, closing the lane to through traffic by vehicles,

3. The proposed tree in the rear yard, pool, and deck have been adjusted to ensure impacts to landscaping are minimised;

4. The rainwater tank has been moved to be located under the proposed driveway;

5. Tree species have been changed to reflect the agreements of the arboricultural and landscaping experts.

13. A signed s 34 agreement with Annexures A and B and amended plans was filed with the Court on 3 July 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites.

14. Accordingly, 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.

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

16. I have considered the contents of the agreed jurisdictional statement, together with the documents referred to therein, the Class 1 Application and its attachments, the documents that are referred to in Condition 2 (of Annexure A), concerning the Modification Application. Based on those documents, I have considered the matters required to be considered pursuant to ss 4.55(3) and 4.15(1) of the EPA Act.

17. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to grant consent to the Modification Application.

18. 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.

Jurisdictional Prerequisites

Substantially the Same Development - Environmental Planning and Assessment Act

19. Pursuant to s 4.55(1A) of the EPA Act, a consent authority may modify a development consent if it is satisfied that:

1. the proposed modification is of minimal environmental impact; and

2. the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all); and

3. it has notified the application (if required) and has considered any submissions made concerning the proposed modification.

20. Section 4.55(2)(a) of the EPA Act requires the Court exercising the functions of the Consent Authority to be satisfied that the consent as modified is substantially the same development as the development for which consent was originally granted. The parties advise that the Respondent has not raised any objections in relation to the test contained in s 4.55(2)(a) of the EPA Act, however submit that the text of this section of the EPA Act calls for a comparison between the development as proposed to be modified and the development as originally approved.

21. The parties advise that the main changes proposed under the current modification against the original Consent are as follows:

1. Minor changes to the internal layout on the ground and first floor whilst still maintaining the same essential elements of those floors;

2. Addition of a basement with a home theatre and utility room;

3. Deletion of a deferred commencement condition A relating to vehicular access to land and car stacker;

4. Addition of a pool to the rear courtyard.

22. The parties submit that quantitatively, the proposed modifications do not alter a critical element of the development such to require a new development application, and specifically that:

1. The essential components of the dwelling house do not change. That is, in the before and after circumstance, the dwelling house remains a dwelling house.

2. Whilst access to the site changes from Duncan Street to Caroline Street, that Access to the site is still via Jaggers Lane, which is considered safe. This provides a safer way in which to enter Jaggers Lane by a B85 vehicle. The original Consent deemed use of Jaggers Lane acceptable, subject to satisfaction of access being shown without the relocation of public infrastructure. As part of the Modification Application, access via Jaggers Lane is still proposed, with dedication of land to Council to widen the access from Caroline Street.

3. The overall bulk and scale of the development will remain compliant within the prevailing development standards of building height and floor space ratio, indicating that the development, as proposed, will remain compatible with its neighbours. Any additional components (such as the addition of the basement and pool), are not components which will be visible, and do not cause any unreasonable environmental impacts.

23. The parties advise that s 4.55(2)(b) of the EPA Act does not apply to this appeal and the consent authority does not need to consult with the relevant Minister, public authority, or approval body in respect of any conditions imposed as a result of concurrence requirements.

Owner’s consent

24. Owner’s written consent was provided in the lodgement of the Modification Application.

Community Participation (Section 4.55(2)(c) EPA Act)

25. The parties advise that the Respondent publicly notified the Modification Application from 30 May 2023 to 13 June 2023. A total of 13 submissions raising issues with the proposed development were received, and two further submissions which contained at least partial support for the proposed development.

26. Six objectors addressed the Court during the site view, and two residents spoke in favour of the Modification Application. A key issue raised by the objectors was the effect on safety and pedestrian access of the use of Jaggers Lane for vehicular access to the site.

Conditions

27. The s 34 agreement includes the imposition of conditions which are imposed under subs 4.17(1) of the EPA Act.

Inner West Local Environmental Plan 2022

28. The Inner West Local Environmental Plan 2022 (the LEP) applies to the site and to the proposed development. Under the LEP provisions, the site is zoned R1 General Residential (R1 zone) pursuant to cl 2.2 of the LEP; and

1. The proposed development is permissible with development consent in the R1 zone;

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.

29. Clause 4.3C of the LEP requires that development on a lot size greater than 235m² have a landscaped area of at least 20% of the site area, and a maximum site coverage of 60%; and

1. the parties advise that the landscaped area proposed in the Modification Application is 36.52m² or 12.2% of the site area:

2. Notwithstanding the noncompliance with the numerical standard within cl 4.3C, the parties submit that the planning experts agree that the modified development does meet the objectives of cl 4.3C; and

3. A written request pursuant to cl 4.6 of the LEP is not required for the contravention of a development standard arising as a result of a modification application.

30. Clause 4.4(2B)(b) of the LEP prescribes a maximum floor space ratio of 0.9:1; and:

1. The parties advise that the development the subject of the Modification Application proposes an FSR of 0.81:1, thereby complying with this control.

31. Clause 5.10 of the LEP is concerned with heritage matters. The parties advise that the site is located in the Waterview Estate Heritage Conservation Area (the HCA), although the site is not a heritage item; and

1. A Heritage Impact Statement by Weir Phillips was submitted with the Modification Application; and

2. The parties advise that the Court can be satisfied that the proposed modifications are acceptable from a heritage perspective and conserve the heritage significance of the HCA.

32. Clause 6.1 of the LEP is concerned with acid sulfate soils. The parties advise that the presence or risk of acid sulfate soils is a matter for consideration in the original DA. However, as the Modification Application now proposes additional excavation, a Geotechnical Report by White Geotechnical Group dated 1 April 2022 has been submitted with the Modification Application; and:

1. The parties advise that An Acid Sulfate Soils management plan is not required in respect of the proposed works as they do not meet the requirements of the table to cl 6.1(2). In particular, the works would not result in the lowering of the water table below 1m AHD on adjacent Class 1, 2, 3 or 4 land; and that the Court can be satisfied that the proposal meets the acid sulfate soils requirements.

33. Clause 6.2 of the LEP is concerned with earthworks. The proposed development includes significant excavation for the swimming pool and car stacker. The Applicant lodged, as part of the Modification Application, a Geotechnical Report by White Geotechnical Group dated 1 April 2022. The construction of the car stacker requires excavating to a maximum depth of 5.2m; and

1. The parties advise that certain conditions granted under the DA consent (Conditions of Consent 13, 20, and 21) remain included in this Modification Application consent to sufficiently deal with earthworks.

34. Clause 6.3 of the LEP is concerned with stormwater management; and

1. The parties advise that this is a minor development, and the stormwater drainage system is addressed by way of Condition of Consent 18, requiring stormwater draining design plans to be submitted in accordance with the particulars detailed at Condition of Consent 18.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

35. The former Chapter 10 (Sydney Harbour Catchment) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the Biodiversity SEPP) applies to the site, as the original DA was lodged prior to the amendments to the Biodiversity SEPP on 21 November 2022.

36. The parties advise that the site is located within the Sydney Harbour Catchment. The site is not identified as land within the Foreshores and Waterways Area, as a strategic foreshore site, as a heritage item or as land within the wetlands protection area, and therefore only the aims of the Sydney Harbour catchment (former s 10.1(1) of the Biodiversity SEPP) are applicable

37. The parties submit that the Court can be satisfied that the proposal is consistent with the aims of the Sydney Harbour Catchment controls in the Biodiversity SEPP.

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

38. The Modification Application is accompanied by a BASIX certificate prepared by Sustain Build Projects (Amended BASIX Certificate No. A488073-06 dated 3 July 2024).

39. The parties advise that the Court can be satisfied that the development the subject of the Modification Application meets the requirements of the BASIX SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

40. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

40. The parties advise that whether the site is contaminated, is to be remediated, or is suitable in its current state, pursuant to s 4.6 of the Resilience and Hazards SEPP, are matters that were required to be considered by the consent authority in considering the original DA and are not relevant to the consideration of the Modification Application.

Leichhardt Development Control Plan 2013

42. The parties advise that the proposed development which is the subject of the Modification Application is of merit and responds satisfactorily to the Leichhardt Development Control Plan 2013 (the DCP) controls.

Works within the Jaggers Lane Road Reserve - Roads Act 1993

43. The conditions agreed for the Modification Application impose a requirement for work within the road reserve of Jaggers Lane, including the installation of a bollard in the location recommended by the traffic experts for the Applicant and Respondent.

44. This arrangement for access to the site will include the use of Jaggers Lane with access to be provided from Caroline Street. Both parties’ traffic experts agree that the vehicle turn movements and modifications to the Caroline Street/Jaggers Lane intersection are acceptable.

45. To further safeguard against any safety concerns through the use by vehicles of Jaggers Lane (which were raised by objectors to the Modification Application), the Applicant has proposed a bollard be installed halfway down Jaggers Lane, to prevent its use by vehicles as a thoroughfare. The bollard is proposed to be centrally located approximately 2.5 metres to the south of the site’s southern property boundary (to enable vehicles to exit from the site by reversing, before exiting Jaggers Lane in a forward direction) in the location agreed by the traffic experts. As the installation of the bollard on a public road is a matter requiring separate application to the Local Traffic Committee and the Council, the parties advise it cannot be approved as part of this Modification Application.

46. The parties further advise that:

1. Works within the road reserve of Jaggers Lane would be works which require consent under s 138 of the Roads Act 1993. It is noted that the grant of development consent does not confer consent under the Roads Act 1993.

2. The parties have reached agreement (reflected in Condition of Consent No. 16) to the effect that if approval for installation of the bollard is not granted under s 138 of the Roads Act 1993, then the Applicant must provide amended plans deleting the car stacker and vehicular entry gates.

3. In addition, if approval is not granted, the Applicant is not required to dedicate the footpath area at the Caroline St frontage of the site to Council.

Conclusion

47. Having considered the advice of the parties provided above at [19-46], I am satisfied that:

1. the Applicant’s amended Modification Application can be approved having regard to the matters in subs 4.15(1)(b) – (e) and s 4.55(3) of the EPA Act;

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(8) of the EPA Act have been satisfied; and

3. approval of the proposed development is in the public interest.

48. 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.

49. 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.

50. The Court notes:

1. that Inner West Council, as the relevant consent authority, pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to Modification Application MOD/2023/0137 made on 3 July 2024 to rely on the plans and documents specified below:

Plan No.	Description	Rev	Date	Prepared By
Architectural Plans
1-00	BASIX Commitments	D	16 May 2023	Carter Williamson
10-04	Ground Floor Plan	I	2 July 2024	Carter Williamson
10-05	Level 1 Plan	G	28 June 2024	Carter Williamson
10-06	Roof Terrace Plan	G	28 June 2024	Carter Williamson
10-07	Roof Plan	E	28 June 2024	Carter Williamson
10-08	Basement Plan	B	28 June 2024	Carter Williamson
11-01	Elevation: North	F	28 June 2024	Carter Williamson
11-02	Elevation: East	F	28 June 2024	Carter Williamson
11-03	Elevation: South	F	28 June 2024	Carter Williamson
11-04	Elevation: West	F	28 June 2024	Carter Williamson
12-01	Section: A	G	21 June 2024	Carter Williamson
12-02	Section: B	G	28 June 2024	Carter Williamson
13-01	Materials and Finishes Schedule	E	28 June 2024	Carter Williamson
13-02	Materials and Finishes Schedule: Elevations	E	28 June 2024	Carter Williamson
15-01	Area Calculations: GFA	E	28 June 2024	Carter Williamson
15-02	Area Calculations: Site Coverage/Landscape	G	28 June 2024	Carter Williamson
18-01	Notification Plan | Roof	E	28 June 2024	Carter Williamson
18-02	Notification Plan | Elevations (north and west)	E	28 June 2024	Carter Williamson
18-03	Notification Plan | Elevations (east and south)	E	28 June 2024	Carter Williamson
Landscape Plans
LS00	Cover Page	B	17 June 2024	Melissa Wilson Landscape Architects
LS01	Site Plan	B	17 June 2024	Melissa Wilson Landscape Architects
LS02	Ground Floor	B	17 June 2024	Melissa Wilson Landscape Architects
LS02.1	Level 1 + 2	B	17 June 2024	Melissa Wilson Landscape Architects
LS03	Rear Garden Detail	B	17 June 2024	Melissa Wilson Landscape Architects
LS03.1	Lever 1 + 2 Planter Details	B	17 June 2024	Melissa Wilson Landscape Architects
LS04	Plant Species	B	17 June 2024	Melissa Wilson Landscape Architects
LS05	Notes	B	17 June 2024	Melissa Wilson Landscape Architects
LS06	Typical Details	B	17 June 2024	Melissa Wilson Landscape Architects
Other Documents
Description		Date		Prepared by
Swept Path Diagrams SK.02 - Survey Plan – B85 Design Vehicle Swept Path – Analysis Entry Movement into Jaggers Lane via Caroline Street (Rev A)		3 June 2024		PDC Consultants
Swept Path Diagrams SK.03 – Survey Plan – Modified Kerb line		3 June 2024		PDC Consultants
Swept Path Diagrams 001 - Ground Floor Plan – B85 Design Vehicle Swept Path Analysis – Site Entry / Exit Movements to and from Caroline St		7 June 2024		PDC Consultants
Jaggers Lane Pedestrian Access Study prepared by PDC Consultants		•		PDC Consultants
Car Stacker Specification Sheet		•		Car Stackers International
Amended BASIX Certificate No. A488073-06		3 July 2024		Sustain Build Projects

2. The amended Modification Application was filed with the Court on 3 July 2024.

51. The Court orders that:

1. The appeal is upheld.

2. Development consent DA/2022/0322 is modified in the terms in Annexure ‘A’.

3. Development Consent DA/2022/0322 as modified by the Court is Annexure ‘B’.

G Kullen

Acting Commissioner of the Court 

Annexure A 

Annexure B

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Decision last updated: 02 September 2024