Martyn v Inner West Council

[2020] NSWLEC 1567

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Martyn v Inner West Council [2020] NSWLEC 1567

Hearing dates:

Conciliation conference on 10 November 2020

Date of orders:

18 November 2020

Decision date:

18 November 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [9]

Catchwords:

DEVELOPMENT APPLICATION – conditions of consent – heritage conservation – heritage significance – Balmain East heritage conservation area – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Leichhardt Local Environmental Plan 2013

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

State Environmental Planning Policy No 55 – Remediation of Land

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Ryan Geoffrey Martyn (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
S Allam (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2020/172221

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 in respect of the grant of consent determined by Inner West Council (the Respondent) on Development Application No. D/2019/518 for works at 2 Duke Place, Balmain East, otherwise known as Lot 100 in Deposited Plan 588964 (the site).

2. The appeal seeks the grant of consent, absent Condition 6(a) of the consent which is in the following terms:

“The bathroom located within the original cottage is to be deleted from the proposal in its entirety and is to be relocated within the new rear wing addition of the dwelling. The southern internal wall of the laundry is to be extended 1.5m to accommodate a new bathroom – no new window openings are permitted to accommodate the new bathroom.”

3. The appeal was listed for mandatory conciliation on 10 November 2020, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). However, prior to the conciliation conference, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 6 November 2020.

4. 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 applicant, 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.

5. 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 [9].

6. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

1. The site is located within the R1 General Residential zone as identified by the Leichhardt Local Environmental Plan 2013 (LLEP). The provisions of the R1 zone permit dwelling house development with consent that is consistent with the objectives of the zone, which are as follows

• 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 improve opportunities to work from home.

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

• To provide landscaped areas for the use and enjoyment of existing and future residents.

• To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

• To protect and enhance the amenity of existing and future residents and the neighbourhood.

2. Pursuant to cl 4.3A(3) of the LLEP, development consent must not be granted to development to which the clause applies unless landscaped area equal to 15% of the area of the site is provided and site coverage does not exceed 60% of the site area. On the basis of the drawings, I am satisfied that the proposal complies with the requirements of cl 4.3A of the LLEP with respect to landscaped area and site coverage.

3. Pursuant to cl 4.4(2) and the Floor Space Ratio Map of the LLEP, the floor space ratio (FSR) applicable to the site is 0.5:1. However, considering the application of cl 4.4(2B)(b)(iv), the maximum FSR applicable to the site is 0.7:1. The proposed development provides 245.1m² of gross floor area, equating to a FSR of 0.32:1 and so I am satisfied it complies.

4. As the site is listed in Sch 5 of the LLEP as an item of local heritage significance, the provisions of cl 5.10 of the LLEP apply. I note that the applicant seeks leave to rely on an additional architectural plan (detailing the installation of the bathroom) prepared by Raymond Panetta Architect and dated 3 September 2020, and a new heritage assessment letter prepared by Weir Phillips Heritage and Planning and dated 18 September 2020. On this basis I am satisfied that the proposed works to insert a ‘bathroom pod’ in the heritage item is detailed with sufficient care to be reversible in the future, without damage to the existing heritage fabric. In particular, the works will not be affixed to the original floors, walls or ceiling of the dwelling, and so will not be adverse to the heritage significance of the item.

5. In considering the effect of the deletion of the condition that would permit the works, I have also considered the objectives and controls at Part C1.4 ‘Heritage Conservation Areas and Heritage Items’ in the Leichhardt Development Control Plan 2013 (LDCP).

6. Clause 6.2 of the LLEP requires consideration of certain matters in respect of the earthworks proposed by the development. I consider the extent of earthworks required for the swimming pool to be minor and so be acceptable in respect of those matters set out at cl 6.2(3) of the LLEP.

7. Clause 6.3 of the LLEP requires that the consent authority, or the Court on appeal, be satisfied in respect of flood planning provisions. On the basis of the internal referral by Council’s stormwater engineer, and the conditions of consent relating to flood planning, I am satisfied as required by subcl 6.3(3) of the LLEP.

8. Clause 6.4 of the LLEP requires that the consent authority, or the Court on appeal, be satisfied in respect of stormwater management. On the basis of drawing no. C01 issue B and the conditions of consent relating to stormwater drainage system, I am satisfied as required by subcl 6.4(3) of the LLEP.

9. In respect of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), I have read the site history for the specific site in the Statement of Heritage Impact prepared by Heritage 21 dated December 2019, and I am satisfied that the subject land has been residential in nature since 1839 and so is not contaminated.

10. The proposed development includes the removal of eight (8) trees from the site. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) concerns the terms by which protection or removal of vegetation identified may occur under the Vegetation SEPP and gives effect to the local tree preservation provisions of the LDCP. On the basis of the Arboricultural Impact Assessment Report, prepared by Ms Margot Blues, dated 29 November 2019, and the conditions of consent, I am satisfied that the provisions of the Vegetation SEPP have been met.

11. Pursuant to cl 3 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) and the Sydney Harbour Catchment Map the site is located within the Sydney Harbour Catchment. However, I am satisfied that the site is not located within the Foreshores and Waterways Area or a wetlands protection area and is not identified as a strategic foreshore site or a heritage item listed under the SREP.

12. Finally, I am satisfied that the application is accompanied by a BASIX certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

7. 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.

8. 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.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to rely upon the following additional documents, copies of which are included at Annexure ‘A’:

Plan reference	Prepared by	Date
Drawing No. A701 – Wet Area Plumbing Details, Issue D	Raymond Panetta Architect	18 September 2020
Document Reference	Prepare by	Date
Heritage Assessment Letter	Weir Phillips Heritage and Planning	18 September 2020

2. The appeal is upheld.

3. Development consent is granted for Development Application number D/2019/518 for alterations and additions to the existing dwelling, conversion of the existing outbuilding to a secondary dwelling, new garage and swimming pool and associated tree removal and site works, on land identified as Lot 100 in Deposited Plan 588964 and known as 2 Duke Place, Balmain East, in accordance with the conditions included at Annexure ‘B’.

…………………..

T Horton

Commissioner of the Court

Annexure A (363310, pdf)

Annexure B (242516, pdf)

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Amendments

18 November 2020 - Representation details for the Applicant on the cover sheet corrected.

Decision last updated: 18 November 2020