MacLeod v Inner West Council

[2018] NSWLEC 1613

Land and Environment Court

New South Wales

Medium Neutral Citation:	MacLeod v Inner West Council [2018] NSWLEC 1613
Hearing dates:	Conciliation conference on 29 October 2018
Date of orders:	30 November 2018
Decision date:	30 November 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See [22] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Category:	Principal judgment
Parties:	Shona MacLeod (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: G Green, Pikes & Verekers Lawyers (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/122782
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Shona MacLeod (the applicant) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Inner West Council (the Council) of development application DA D/2018/59 (the application).

2. The application seeks consent under the EPA Act for alterations and additions to an existing dwelling and associated works at Lot A DP 439379, being 6 Booth Street, Balmain (the site).

3. Specifically, the application the subject of the appeal proposed extensions to the dwelling at the rear to create an enlarged ground floor kitchen and living area with a new first floor addition containing two bedrooms, storage and a bathroom. Vehicle access was proposed off Bradford Lane to a new off-street parking space in the rear yard.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

6. The LEC Act also requires me to set out in writing the terms of the decision; s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

7. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met.

8. The Statement of Facts and Contentions (SFC) filed with the Court by the Council indicates that the site has an area of 183m² and is located on the south-eastern corner of Booth Street and Bradford Lane. The site contains a single storey semi-detached dwelling house (semi) with a gabled roof to the front and a hipped then skillion roof to the rear. There is a shed in the paved rear yard but no current access from Bradford Lane to the rear yard.

9. The semi shares a common boundary and wall with the adjoining semi at 8 Booth Street. These two semis largely retain their original presentation to Booth Street as a matching pair. However, 8 Booth Street has a second storey addition to the rear. The owner of 8 Booth Street lodged an objection to the application.

10. The site is within the R1 General Residential zone under the Leichhardt Local Environmental Plan 2013 (the LEP) and the proposed development is permissible with consent in that zone. The site is located within the C7 Gladstone Park Heritage Conservation Area (HCA) in proximity to a number of items listed as heritage items in the LEP.

11. In the SFC, the Council raised a concern that the proposed extension would result in non-compliances with the landscaped area provisions at cl 4.3A of the LEP which set specific standards in terms of the percentage of landscaped area required to be provided and the maximum site cover permissible. Clause 4.3A of relevance to the appeal is as follows:

4.3A   Landscaped areas for residential accommodation in Zone R1

(1)  The objectives of this clause are as follows:

(a)  to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents,

(b)  to maintain and encourage a landscaped corridor between adjoining properties,

(c)  to ensure that development promotes the desired future character of the neighbourhood,

(d)  to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water,

(e)  to control site density,

(f)  to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space.

(2)  This clause applies to development for the purpose of residential accommodation on land in Zone R1 General Residential.

(3)  Development consent must not be granted to development to which this clause applies unless:

(a)  the development includes landscaped area that comprises at least:

(i)  where the lot size is equal to or less than 235 square metres – 15% of the site area, or

(ii) -

(b)  the site coverage does not exceed 60% of the site area…

12. In this regard, the existing semi does not comply with the requirements of cl 4.3A in terms of site coverage and landscaped area. The application as lodged would increase the site coverage, and the ability to meet the 15% landscaped area would be lost as a result of the proposed car space in the rear yard. A written request to vary cl 4.3A had not been submitted as was required by cl 4.6 of the LEP justifying the variations sought in order for consent to be granted.

13. The Council also raised a number of merit contentions in terms of the potential for increased overshadowing of the rear yard of, and privacy impacts on, 8 Booth Street, the useability and extent of the private open space, inadequate side setbacks, and the design of and access to the proposed car space. Concern was also raised with the ability to manage stormwater and the heritage impacts of the proposed upper level rear extension, including its bulk and scale, given the site’s location in the HCA.

14. As a result of conciliation, the application was amended. In essence the key amendments were:

1. the deletion of the proposed car space enabling stormwater retention and introducing landscaped area and more useable private open space into the rear yard; and

2. modification to the upper level extension to address HCA concerns and to more reflect the extension on the adjoining semi-detached dwelling at 8 Booth Street as well as to address impacts on 8 Booth Street.

15. In support of the amended application, a cl 4.6 request was submitted. Whilst the amended proposal now provided the required 15% of landscaped area, it still could not meet the maximum site cover permissible under LEP cl 4.3A(3)(b) given the site cover already exceeded 60% prior to any extensions being undertaken.

16. The submitted cl 4.6 request states that the existing variation to the site cover standard is some 8.24m² or 7.5%. There is a difference in the calculated proposed site cover between the applicant and the Council being a difference in whether or not to include a terrace under the roof line. Therefore, the amended application results in a site cover breach of between 13.84m² and 18.44m² (or between 12.6% and 16.8% of the standard).

17. The cl 4.6 request is referenced in the orders and attached as Annexure B. I have reviewed and considered the request and am satisfied that it demonstrates that compliance with the maximum site cover required by the LEP is unreasonable or unnecessary in the circumstances of this application and that there are sufficient environmental planning grounds to justify the contravention sought. Furthermore, that the development will be in the public interest because it is consistent with the objectives for development in the R1 zone in which the site is situated for the reasons outlined in the request.

18. Further, the concurrence of the Secretary of the Department of Planning can be assumed pursuant to cl 4.6(4)(c) and having considered the requirements of cl 4.6(5), also for the reasons outlined in the request.

19. Those reasons, on which my finding of satisfaction on the proposed variation is based, can be summarised as follows:

1. The existing semi, and its matching pair at 8 Booth Street, already exceed the maximum site coverage permissible under the LEP. Requiring compliance with the standard would therefore reduce the existing amenity of the dwelling and result in a site cover inconsistent with the site cover of its matching pair;

2. The proposed site cover is similar to, being essentially the same as, the site cover of its matching semi at 8 Booth Street and the proposed floor space is compliant with the FSR control in the LEP;

3. The development will provide onsite landscaping in the rear yard when none currently exists, improving the amenity for the occupants and the neighbours and meeting the objective of the landscaping standard;

4. The application now complies with the required 15% landscaping provision where the current development is deficient with landscaping provided in the rear yard which is currently only a hardstand area. This will also enable improved onsite stormwater drainage, thus further meeting the objectives of the standard;

5. The development maintains a built form that is consistent with the existing and desired future character of the HCA in which it is situated;

6. The development will maintain the amenity of its neighbours and substantially improve the amenity of the existing occupants in terms of both the additional private open space and landscaping provided, and the liveability of the existing dwelling;

7. The development meets the objectives of the R1 zone, including providing for the housing needs of the community in a form and landscape compatible with surrounding buildings and streetscapes whilst improving the amenity of the dwelling and of the site; and

8. No substantive public benefit would be realised by requiring strict compliance with the standard as the overall design approach and outcome for the site improves amenity for the dwelling whilst maintaining an appropriate relationship with neighbouring properties.

20. In addition to compliance with cl 4.6, the other applicable preconditions to consent contained in the LEP have been satisfied.

21. A Certificate has also been provided demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate.

22. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of Annexure ‘A’.

2. The applicant is to pay the respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The Applicant’s written request under clause 4.6 of Leichardt Local Environmental Plan 2013 seeking a variation of the development standard for site coverage set out in clause 4.3A(3)(b) of the Leichardt Local Environmental Plan 2013 (which is attached and marked Annexure ‘B’), is upheld.

4. The appeal is upheld.

5. Development Application D/2018/59 for alterations and additions to the existing dwelling and associated works at 6 Booth Street, Balmain is approved subject to the conditions at Annexure ‘A’.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A (C)

Annexure B

Decision last updated: 04 December 2018