Lepouris v Inner West Council

[2024] NSWLEC 1704

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lepouris v Inner West Council [2024] NSWLEC 1704

Hearing dates:

24-25 October 2024: final submissions 28 October 2024

Date of orders:

5 November 2024

Decision date:

05 November 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA/2023/0825, as amended, for Lower ground, ground and first floor alterations and additions to existing heritage listed dwelling house, and associated works, including new lower level garage with vehicular access via Broderick Street, and swimming pool, fencing and retaining wall and landscaping works, on land known as 96 Elliott Street Balmain NSW 2041 (identified as Lot 1 DP 909386) and land known as 98 Elliott Street Balmain NSW 2041 (identified as Lot 1 in DP301, Lot 2 in DP301 and Lot 1 in DP909271), is determined by grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to heritage item – heritage conservation – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

Inner West Local Environmental Plan 2022, cll 4.3, 4.3C, 4.5, 5.10, 6.1, 6.2, 6.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, ss 2.6, 6.6, 6.7, 6.8, 6.9

State Environmental Planning Policy (Sustainable Buildings) 2022

Texts Cited:

Inner West Council Community Engagement Framework

Category:

Principal judgment

Parties:

Anthia Lepouris (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
T Howard SC (Applicant)
C Norton (Respondent)

Solicitors:
Prilis Solicitors (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/182682

Publication restriction:

Nil

Judgment

1. COMMISSIONER: A free standing Victoria era dwelling house stands at the bend in the road on Elliot Street, Balmain. Alterations and additions are proposed to the rear of the dwelling along with a new swimming pool, landscaping, basement car parking and associated site works such as a new driveway off nearby Broderick Street via a proposed right of way.

2. The site is legally described as Lot 1 in DP 909386, otherwise known as 96 Elliot Street, Balmain. Additionally, the site comprises adjoining lots identified as Lots 1 and 2 in DP 301.

3. Currently, Lots 1 and 2 in DP 301 and Lot 1 in DP 909271 present to the street as vacant, as does a Lot of land to the approximate south of the dwelling, legally described as Lot 6 in DP 301 and otherwise known as No 94E Elliot Street.

4. To this end, development application DA/2023/0825 was lodged by the Applicant in these proceedings, Ms Lepouris, on 9 October 2023 with Inner West Council, the Respondent in this matter.

5. The development application was notified in accordance with the Inner West Council Community Engagement Framework between 18 October – 1 November 2024, in response to which twenty submissions were received.

6. As the development application was not otherwise determined, on 16 May 2024, the Applicant filed an appeal with the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

7. The appeal was listed for mandatory conciliation on 24 October 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). The proceedings commenced on site where, in the company of the legal representatives and experts, the Court heard oral submissions from residents of adjoining and nearby properties, and was taken inside dwellings at 13 Broderick Street and 94 Elliot Street to view the particular concerns held by the residents.

8. At the conciliation conference that followed the onsite view, the parties were able to reach agreement on those matters in contentions, subject to a short adjournment for the preparation of amended plans and other documents.

9. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 28 October 2024.

10. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application.

11. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

12. 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. The parties’ decision involves the Court exercising the 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.

13. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

14. The site is located within the R1 General Residential zone, according to the Inner West Local Environmental Plan 2022 (IWLEP) in which development for the purposes of a dwelling house is permitted with consent, where consistent with the objectives of the R1 zone, that 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 provide residential development that maintains the character of built and natural features in the surrounding area.

15. While the parties agree the landscaped area proposed complies with that at cl 4.3C(2)(a)(ii) of the IWLEP, the parties calculate the site area differently. In short, the Council relies on provisions at cl 4.5 of the IWLEP to include the area of those lots known as 98 Elliot Street, and because the development proposed on those lots is regarded by Council as significant. While the Applicant considers it differently, the parties accept the proposal provides at least 20% of the site as landscaped area.

16. Likewise, and with the same divergence of view as to the means by which the calculation is made, the parties also agree the proposal does not propose a site coverage greater than 60% in accordance with cl 4.3C(3)(b) of the IWLEP.

17. The existing dwelling on the site is listed for its heritage significance in Sch 5 of the IWLEP as ‘House, Braeside, including interiors.’ The experts agree that the listing of the item in Sch 5 of the IWLEP identifies the land the subject of the listing to comprise all of those lots identified at [2] and [3] that were amalgamated over the period between 1877 and 1921.

18. Excavation of the basement garage has been reduced to ensure earthworks are clear of the heritage fabric that is proposed to be retained, beyond the dimension recommended by the Preliminary Temporary Works Design, prepared by Witt Consulting and dated 23 June 2023 (Witt Report). Additional information has been added to the architectural plans as to the dimension of openings that are proposed to be either enlarged or, in the case of an existing east facing window on the first floor, agreed to be filled in, and a Schedule of Conservation works is required prior to the operation of the consent.

19. On the basis of the above, I have considered the effect the proposed development is likely to have on the heritage item and on the Iron Cove HCA, and I accept the effect to be acceptable in accordance with cl 5.10 of the IWLEP.

20. The site is located within an area identified on the relevant map at cl 6.1(2) of the IWLEP as Class 5 Acid Sulfate Soils. While the development is within 500m of another class of soil, excavation is not proposed below 5m Australian Height Datum and so an Acid Sulfate Soils management plan is not necessary.

21. I have considered the extent of earthworks proposed on the site in accordance with cl 6.2 of the IWLEP, and conclude, on the basis of the recommendations of the Geotechnical Investigation prepared by JK Geotechnics dated 20 February 2023, the amended Stormwater specification from Mr James Gorringe of Mesh Group dated 25 October 2024 (Mesh Group Email), and the agreed conditions of consent (Condition 34), there is unlikely to be any detrimental impact on the drainage patterns in the locality, or on the future development of the land, the amenity of adjoining properties or any other aspects of a kind identified at subcl (3) if excavation is carried out in accordance with the methodology at Section 7 of the Witt Report that includes excavation by sawcutting, and the waste management plan prepared on behalf of the Applicant which undertakes to divert 100% of materials removed during demolition from landfill. I also note excavation in the vicinity of No 13 Broderick Street has been setback 1m from the relevant boundary.

22. On the basis of the Amended Stormwater Plans prepared by Mesh Group and dated 25 October 2024 (the Amended Stormwater Plans), the Mesh Group Email and the extent of water-permeable surfaces evident on the land and in planter beds depicted on Landscape Plans prepared by Bates Landscape, I am satisfied that the development is designed to maximum such surfaces. I am also satisfied that the stormwater runoff is reduced from the existing runoff, and that a reduction in pollutants and suspended solids contained within stormwater runoff will be likewise reduced from the levels that exist today, due in part to the OSD proposed. Accordingly, I conclude Stormwater management is adequately addressed, in terms set out in cl 6.3 of the IWLEP.

23. Relatedly, and assisted by the Amended Stormwater Plans and the Mesh Group Email dated 25 October 2024, I am satisfied that the water quality and water flow are consistent with those matters about which I must be satisfied in accordance with s 6.6(2) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP).

24. The Ocean Protect filtration contained within the OSD, shown in the plan accompanying the Mesh Group Email satisfies me that any impact on animals or vegetation is minimised, will not have a direct or indirect impact on aquatic reserves, cause erosion or sedimentation in terms set out in s 6.7 of the Biodiversity SEPP.

25. As the site is not flood liable, does not impact recreational uses nor the public access to foreshores, waterways or the like, I do not consider ss 6.8 or 6.9 of the Biodiversity SEPP to apply.

26. Chapter 2 of the Biodiversity SEPP applies to the site. The development application is accompanied by an Arboricultural Impact Assessment prepared by Bellevue Tree Consultants dated 15 September 2023 that assesses 13 existing trees, and proposes the removal of three trees. Section 2.6 of the Biodiversity SEPP allows for the removal of vegetation with consent.

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

27. The application is accompanied by a BASIX certificate (Cert No. A1770355 prepared by Mr Nick Prilis) dated 25 October 2024 in accordance with State Environmental Planning Policy (Sustainable Buildings) 2022 (Sustainable Buildings SEPP).

Conclusion

28. 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.

29. 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.

30. The Court notes that:

1. The Respondent approves under s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application No. DA/2023/0825 in accordance with the following documents:

Plan, Revision and Issue No.	Plan Name	Date	Prepared by
Architectural Plans
DA - 1000, Rev. H	Site	28/10/24	Nicholas Prilis
DA – 1101, Rev. H	Level 1 Plan - Existing	28/10/24	Nicholas Prilis
DA – 1102, Rev. H	Roof Plan - Existing	28/10/24	Nicholas Prilis
DA - 1103, Rev. H	Basement Plan – Proposed	28/10/24	Nicholas Prilis
DA – 1103a, Rev. H	Upper Basement Plan – Proposed	28/10/24	Nicholas Prilis
DA - 1104, Rev. H	Ground Floor – Proposed	28/10/24	Nicholas Prilis
DA - 1105, Rev. H	Level 1 Floor Plan – Proposed	28/10/24	Nicholas Prilis
DA - 1106, Rev. H	Roof Plan – Proposed	28/10/24	Nicholas Prilis
DA - 1201, Rev. H	Section AA	28/10/24	Nicholas Prilis
DA - 1202, Rev. H	Section BB	28/10/24	Nicholas Prilis
DA - 1203, Rev. H	Section CC	28/10/24	Nicholas Prilis
DA – 1204, Rev. H	Detail Section – Stairs	28/10/24	Nicholas Prilis
DA - 1301, Rev. H	Elevation East	28/10/24	Nicholas Prilis
DA - 1302, Rev. H	Elevation North	28/10/24	Nicholas Prilis
DA - 1303, Rev. H	Elevation West	28/10/24	Nicholas Prilis
DA - 1304, Rev. H	Elevation South	28/10/24	Nicholas Prilis
DA – 1305, Rev. H	Rear Boundary Elevation	28/10/24	Nicholas Prilis
DA – 1850, Rev H	Development Calculations	28/10/24	Nicholas Prilis
DA – 1852, Rev. H	Waste & Site Management Plan	28/10/24	Nicholas Prilis
Finishes Schedule	28/10/2024	Nicholas Prilis
A1770355	BASIX Certificate	25/10/24	-
Landscape Plans
C-001, Rev D	Landscaping cover sheet	25/10/24	Bates Landscape
C-002, Rev D	Site Plan	25/10/24	Bates Landscape
C-003, Rev D	Front Garden Plan	25/10/24	Bates Landscape
C-004, Rev D	Rear Garden Plan	25/10/24	Bates Landscape
C-005, Rev D	Stormwater Plan	25/10/24	Bates Landscape
Stormwater Drawings
STW-01, Rev D	Basement Plan	25/10/2024	Mesh Group P/L
STW-02, Rev B	Upper basement Plan	4/10/2024	Mesh Group P/L
STW-03, Rev C	Ground Floor Plan	9/10/2024	Mesh Group P/L
STW-04, Rev B	Level 1 Floor Plan	4/10/2024	Mesh Group P/L
STW-05, Rev B	Roof Level Plan	4/10/2024	Mesh Group P/L
Traffic
Drawing Number 22228-D01-V4	B99 Swept Path Assessment	25 October 2024	CPJ Consulting Engineers

2. The Applicant filed the Amended plans and other documents at [30(1)] with the Court on 28 October 2024.

Orders

31. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA/2023/0825, as amended, for Lower ground, ground and first floor alterations and additions to existing heritage listed dwelling house, and associated works, including new lower level garage with vehicular access via Broderick Street, and swimming pool, fencing and retaining wall and landscaping works, on land known as 96 Elliott Street Balmain NSW 2041 (identified as Lot 1 DP 909386) and land known as 98 Elliott Street Balmain NSW 2041 (identified as Lot 1 in DP301, Lot 2 in DP301 and Lot 1 in DP909271), is determined by grant of consent subject to the conditions at Annexure A.

T Horton

Commissioner of the Court 

Annexure A

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Decision last updated: 05 November 2024