MA v Inner West Council

[2023] NSWLEC 1138

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ma v Inner West Council [2023] NSWLEC 1138

Hearing dates:

Conciliation conference on 6 & 7 March 2023

Date of orders:

28 March 2023

Decision date:

28 March 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted for development application number DA-2021/1328, as amended, for demolition of existing buildings, Torrens title subdivision of the existing lot into two lots, construction of two attached dwellings with rear parking, landscaping and associated works on land identified as Lot 6 and Lot 75 in Deposited Plan 3120 and known as 13 Durham Street, Dulwich Hill NSW 2203, subject to the conditions included at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision – construction of attached dwellings –conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Inner West Local Environmental Plan 2022, cl 1.8A

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

Marrickville Local Environmental Plan 2011, cll 2.6, 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, 6.4

State Environmental Planning Policy (Biodiversity and Conservation) 2021) 2021

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

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

Category:

Principal judgment

Parties:

Jie Ma (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
J Walker (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2022/291940

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the refusal by Inner West Council of Development Application DA-2021/1328, which seeks consent for the demolition of the existing dwelling, Torrens title subdivision and construction of semi-detached dwellings at 13 Durham St, Dulwich Hill, Lot 6 and 75 DP 3120. The appeal has been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

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 6 and 7 March 2023. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached 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 development consent to the development application subject to conditions. As a result of this agreement, an amended application was filed with the Court that addresses all pressed contentions, and it is this application that is the subject of this appeal.

4. 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 one 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. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. From this I note the following:

1. The development application was made with the written consent of the landowner.

2. The development application was appropriately notified by the Council, and four submissions in objection were received in response. Two objectors addressed the Court at the commencement of these proceedings, and were given an opportunity to review and comment on sketch plans that subsequently formed the basis of the amended application now before the Court. The parties submit and I accept that the concerns raised in these submissions have been considered and adequately addressed in the amended application.

3. The amended application is accompanied by a BASIX certificate that applies to the proposed development, as required pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. Based on the parties’ submission and information provided in the Statement of Environmental Effects, I am satisfied that the site has been historically used for residential purposes and has no known history of contaminating uses or events, and that therefore the site is suitable for the intended development as required by s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021.

5. Based on the parties’ submissions, accompanying Arboricultural Impact Assessment Report and relevant conditions of consent, I am satisfied that the requirements established by the State Environmental Planning Policy (Biodiversity and Conservation) 2021) 2021 relating to clearing of vegetation in a non-rural area have been satisfied in the amended application.

6. The site is zoned R2 Low Density Residential pursuant to the Marrickville Local Environmental Plan 2011 (MLEP). Pursuant to the relevant land use table in the MLEP, the proposed subdivision and development for the purposes of semi-detached dwellings is permitted with consent in this zone. Further, the parties submit, and I accept that the amended application is consistent with the objectives of this zone.

7. The proposed development is consistent with the subdivision requirements set out in MLEP cl 2.6, and this application requests the development consent required for demolition pursuant to MLEP cl 2.7.

8. The proposal is consistent with all relevant development standards established by the MLEP, including height of buildings (cl 4.3) and floor space ratio (cl 4.4).

9. Pursuant to MLEP cl 5.10, the site does not contain a heritage item and is not located within a heritage conservation area.

10. Pursuant to MLEP cl 6.1, the site is not identified as any class of land affected by acid sulfate soils, and an acid sulfate soils management plan is therefore not required.

11. The amended application proposes minor earthworks which must be considered pursuant to the requirements of MLEP cl 6.2(3). The parties submit and I accept that the application and relevant conditions of consent adequately address the requirements of this clause.

12. Pursuant to cl 6.4 and the Natural Resource – Biodiversity Map of MLEP, the subject site is identified as “Biodiversity” and the matters listed under cl 6.4 (3) must be considered. The parties submit and I accept that these matters have been considered in the preparation of the amended application and, subject to the inclusion of the relevant conditions of consent, the proposed development is designed, sited, and will be managed to avoid any significant adverse environmental impact.

13. On 16 March 2020, the Draft Inner West Local Environmental Plan 2020 (Draft LEP) was placed on public exhibition and, pursuant to s 4.15(1)(a)(ii) of the EPA Act was a matter for consideration in the assessment of the development application. On 12 August 2022, the Inner West Local Environmental Plan 2022 (LEP 2022) was gazetted. Pursuant to the savings provisions of cl 1.8A of the LEP 2022, this application is to be determined as if the LEP 2022 had not commenced. Regardless, the parties submit and I accept that the amended application is acceptable with respect to the provisions of the Draft LEP and the LEP 2022.

5. For these reasons, 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.

6. 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.

7. The Court notes:

1. The Respondent, as the relevant consent authority, has agreed to the Applicant amending the Application Class 1 pursuant to cl55(1) of the Environmental Planning and Assessment Regulation 2000 so as to rely on the following amended materials.

Document Description	Prepared By	Date
(a) Drawing number DA1440-A, Issue C – Site Plan (b) Drawing number DA1440-B, Issue C – Draft Subdivision Plan (c) Drawing number DA1440-D, Issue C – Ground Level Floor Plan (d) Drawing number DA1440-E, Issue C – Upper Level Floor Plan (e) Drawing number DA1440-F, Issue C – Roof Level Plan (f) Drawing number DA1440-G, Issue C – Elevations (g) Drawing number DA1440-H, Issue C – Elevations (h) Drawing number DA1440-I, Issue C – Sections (i) Drawing number DA1440-J, Issue C – Garages	Peter Byfield & Associates Pty Ltd	March 2023
External Materials Sample Schedule, Issue B	Peter Byfield & Associates Pty Ltd	March 2023
BASIX Certificate number 1262107M_03	Efficiency Assessments Pty Ltd	13 March 2023

2. The Applicant filed the abovementioned amended materials with the Court (and with the consent of the Respondent) on 14 March 2023.

8. The Court orders:

1. The appeal is upheld.

2. Development consent is granted for development application number DA-2021/1328, as amended, for demolition of existing buildings, Torrens title subdivision of the existing lot into two lots, construction of two attached dwellings with rear parking, landscaping and associated works on land identified as Lot 6 and Lot 75 in Deposited Plan 3120 and known as 13 Durham Street, Dulwich Hill NSW 2203, subject to the conditions included at Annexure A.

……………………….

E Washington

Acting Commissioner of the Court

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Amendments

28 March 2023 - 09 March 2023 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to the site's legal description at paragraph [1].

Decision last updated: 28 March 2023