Mann v Inner West Council

[2021] NSWLEC 1110

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mann v Inner West Council [2021] NSWLEC 1110

Hearing dates:

Conciliation conference on 9 February 2021

Date of orders:

3 March 2021

Decision date:

03 March 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The Applicants are granted leave to rely upon the amended plans and documentation referred to in condition 7 of the conditions at annexure “A”.

(2)   The appeal is upheld.

(3)   Development consent is granted to Development Application DA 2020/0067 for the demolition of rear stairs, garage roof and internal structure, internal alterations and additions to 2 levels of existing duplex, rear balconies, common area upgrade and attic storage to garage at 136 Victoria Road, Ashfield, subject to the conditions of consent at annexure “B”.

Catchwords:

DEVELOPMENT APPLICATION – heritage conservation – heritage conservation area – alterations and additions – conciliation conference – agreement between parties – orders

Legislation Cited:

Ashfield Local Environmental Plan 2013, cll 4.3, 5.10

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979, s 34

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

Category:

Principal judgment

Parties:

Dean Mann (First Applicant)
Dale Mann (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Anstill (Applicants)
A Pearman (Respondent)

Solicitors:
Bick & Steele (Applicants)
Inner West Council (Respondent)

File Number(s):

2020/209316

Publication restriction:

No

Judgment

1. COMMISSIONER: Messers Dean and Dale Mann (together, the Applicants) are the owners of a two-storey face brick building at 136 Victoria Street, Ashfield to which consent was granted by the Inner West Council (the Respondent) in response to Development Application DA/2020/0067 for the demolition of rear stairs, garage roof and internal structure, internal alterations and additions to 2 levels of existing duplex, rear balconies, common area upgrade and attic storage to garages.

2. The appeal, brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), is in regard to two conditions of consent.

3. The appeal was listed for mandatory conciliation on 9 February 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

4. The matter commenced with an onsite view, at which time the parties advised me they had reached agreement, under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties. The terms of the agreement required the preparation of amended plans for which an adjournment was granted.

5. A signed agreement prepared in accordance with s 34(10) of the LEC Act was subsequently filed with the Court on 9 February 2021.

6. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicants, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

7. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [12].

8. I formed an opinion of satisfaction that each of the matters to which the Court must give regard have been satisfactorily addressed for the reasons that follow:

1. The site is located within the R2 Low Density Residential zone according to the Ashfield Local Environmental Plan 2013 (ALEP) in which dual occupancy (attached) development is permitted with consent.

2. The objectives of the R2 zone are in the following terms:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

3. The permissible floor space ratio (FSR) on the site is 0.5:1, pursuant to cl 4.3 of the ALEP. As the site area is 404.2m², a maximum of 202.1m² of floor space is permitted. Additional floor space added to the site results in a FSR of 0.4:1.

4. While the property is not listed as an item of heritage significance, it is located within the Victoria Square Conservation Area, identified for its local heritage significance in Schedule 5, Part 2 of the ALEP. I accept the agreed position of the heritage experts that, on the basis of the amended plans, the proposed amendments to the property, including the conversion of the front-facing balconies to ensuite bathrooms, and internal ceiling works will not adversely impact the heritage values of the Victoria Square Conservation Area as required by cl 5.10(4) of the ALEP.

9. Finally, I am satisfied that the application is accompanied by a BASIX certificate for Unit 1 (Certificate No. A368567_02, dated 18 December 2020), and Unit 2 (Certificate No. A368570_02, dated 18 December 2020) prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

10. 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.

11. 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.

12. The Court orders that:

1. The Applicants are granted leave to rely upon the amended plans and documentation referred to in condition 7 of the conditions at annexure “A”.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA 2020/0067 for the demolition of rear stairs, garage roof and internal structure, internal alterations and additions to 2 levels of existing duplex, rear balconies, common area upgrade and attic storage to garage at 136 Victoria Road, Ashfield, subject to the conditions of consent at annexure “B”.

……………………

T Horton

Commissioner of the Court

Annexure A (Plans) (3532552, pdf)

Annexure B (232777, pdf)

**********

Decision last updated: 04 March 2021