Marando v Inner West Council

[2024] NSWLEC 1220

Land and Environment Court

New South Wales

Medium Neutral Citation:

Marando v Inner West Council [2024] NSWLEC 1220

Hearing dates:

Conciliation conference on 10 April 2024

Date of orders:

26 April 2024

Decision date:

26 April 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The appeal is upheld.
(2) Development Application DA/2023/0419, for demolition of the existing dwelling and construction of a two storey dwelling house with an attached secondary dwelling at 28 Bruce Street, Rozelle, is determined by the grant of Development Consent subject to the conditions set out in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – new dwelling and attached secondary dwelling – amended plans – conciliation conference – agreement between the 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 2001, s 38
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards), s 4.6
Inner West Local Environmental Plan 2022, cll 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, 6.3

Texts Cited:

Leichhardt Development Control Plan 2013.

Category:

Principal judgment

Parties:

Joseph Marando (Applicant)
Inner West Council (Respondent)

Representation:

Solicitors:
J Farrell (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/277314

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Joseph Marando (the Applicant) against the deemed refusal of Development Application No DA/2023/0419, by Inner West Council (the Respondent). The Development Application, lodged on 2 June 2023, seeks demolition of the existing dwelling and construction of a two storey dwelling house with an attached secondary dwelling at 28 Bruce Street, Rozelle. The land is legally described as Lot 120 in Deposited Plan 1293438.

2. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 10 April 2024. As a result of the conciliation process the Applicant amended various aspects of the development application and these changes were accepted by the Respondent.

3. The parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to conditions. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

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 (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

1. The application is accompanied by the required owners consents for land covering the development application and works.

2. Pursuant to the Inner West Local Environmental Plan 2022 (IWLEP 2022), the subject site is zoned R1 – General Residential wherein the proposed development is permitted with development consent. Regard has been given to the objectives of the zone in determining the Development Application.

3. Pursuant to cl 2.7 of IWLEP 2022, demolition is permissible with consent. To the extent the demolition is proposed, the impacts of that demolition have been considered and are dealt with in the agreed conditions of consent. The demolition of the building has also been considered, as referenced later in this judgment, pursuant to the requirements of cl 5.10 of IWLEP 2022.

4. The parties agree that the proposal complies with the landscaped area provisions of cl 4.3C of IWLEP 2022 in terms of the provision of both landscaped area and maximum site coverage.

5. The parties agree that the amended proposal complies with the Floor Space Ratio requirements of cl 4.4(2B)(d) of the IWLEP 20221.

6. The requirements of cl 5.10 – Heritage Conservation of the IWLEP 2022 have been considered. The site does not contain, or adjoin, any heritage items, but the site is located in The Valley Heritage Conservation Area pursuant to Schedule 5 – Part 2 Heritage conservation areas of the IWLEP.

7. The parties have considered various reports from Heritage experts including a heritage impact statement that was submitted with the development application. The statement relies on an assessment from a structural engineer that the dwelling is beyond repair and that demolition of the existing building is an agreed outcome. The parties agree that the amended scheme resolves the heritage and conservation contentions that were before the Court. They also agree that the proposed development by virtue of its size, scale, appearance to the street, architectural features, roof form and finishes represents an appropriate and sympathetic response to heritage conservation area controls in the Leichhardt Development Control Plan 2013.

8. The requirements of cl 6.1 of IWLEP 2022 have been met in that the proposal does not trigger any further requirements in respect to acid sulphate soils and the water table.

9. The requirements of 6.2(3) of the IWLEP 2022, in respect to earthworks, that require the consent authority to consider various matters, have been met. The development application proposes no substantive excavation or earthworks below the lower ground floor level. On the basis of the lack of any substantive excavation or earthworks, the parties agree the impacts are minimal. Conditions of consent have also been imposed including in relation to sediment and erosion.

10. The requirements of 6.3 of the IWLEP 2022, in respect to stormwater management, that require the consent authority to consider various matters, have been met. It is agreed between the parties that the proposed development complies with the provision of landscaped surfaces and includes planted areas. The stormwater drainage infrastructure proposes the collection of stormwater and connection to the Council’s infrastructure on Bruce Street with filtration devices. Conditions of consent have been imposed to allow this to occur. The parties agree that there will be no adverse impact of the type identified in cl 6.3(3)(c) of IWLEP 2022.

11. The Development Application was placed on public exhibition for a period of 14 days from 15 June 2023 to 29 June 2023 during which two submissions were received. The parties are satisfied that the matters raised in the two submissions have been adequately considered, and where appropriate, addressed in the amended application the subject to this agreement and the conditions in the Development Consent forming Annexure B.

12. A BASIX Certificate (No 1364393M_07) has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

13. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The parties have assessed the potential for contamination and concluded that, given the current residential use of the site, that contamination is unlikely and that the requirements under cl 4.6 of the Resilience and Hazards SEPP have been met.

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’ agreement.

7. I was not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Conclusions

8. The Court notes:

1. That Inner West Council, as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to development application DA/2023/0419 to rely on the documents listed in Annexure A to this judgment.

Orders

9. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/2023/0419, for demolition of the existing dwelling and construction of a two storey dwelling house with an attached secondary dwelling at 28 Bruce Street, Rozelle, is determined by the grant of Development Consent subject to the conditions set out in Annexure B.

I certify that this and the preceding 4 pages are a true copy of my reasons for judgment.

Stuart Harding

Acting Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 26 April 2024