McKeon v Inner West Council

[2022] NSWLEC 1657

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

McKeon v Inner West Council [2022] NSWLEC 1657

Hearing dates:

25 November 2022

Date of orders:

29 November 2022

Decision date:

29 November 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application number DA/2022/0241, as amended, for alterations and additions to the ground and first floor levels of the existing dwelling, associated works and swimming pool on land identified as Lot 1 in Deposited Plan 910369, and known as 159 Flood Street, Leichhardt NSW 2040 is approved subject to the conditions at Annexure “A”.

Catchwords:

APPEAL – development appeal – appeal concerning conditions – alterations and additions to a dwelling house – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Environmental Planning and Assessment Regulation 2021, cl 27, 37, 38
Land and Environment Court Act 1979, ss 34, 34AA
Leichhardt Local Environmental Plan 2013, cll 6.2, 6.4
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Category:

Principal judgment

Parties:

John Thomas McKeon (Applicant)
Inner West Council (Respondent)

Representation:

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

Solicitors:
Bartier Perry (Applicant)
Apex Planning and Environmental Law (Respondent)

File Number(s):

2022/272519

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns the grant of deferred commencement consent DA/2022/0241 for alterations and additions to an existing dwelling at 159 Flood Street, Leichhardt, on conditions with which the applicant is dissatisfied. The alterations and additions include a new internal layout and staircase, a rear addition, construction of a swimming pool and associated site works. The Class 1 Application is lodged pursuant to the right of appeal existing under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). As there is no right to appeal against the conditions of a development consent, the appeal concerns the whole of the decision made by the Council. In considering the appeal, the Court re-exercises the functions of the Council in determining the application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 25 November 2022. I presided over the conciliation conference.

3. At 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, following the preparation of amended plans by the applicant. The amendments made reduce the length of the rear addition at the first floor to bring the rear building alignment closer to the first floor rear building line of the adjoining dwelling, and also lowers the ridge level of the addition. The Council has approved the amendment to the development application, pursuant to cl 37 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an agreed statement of reasons for upholding the appeal, which sets out the background to the appeal, the nature of the agreement between the parties, and the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of this statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of a dwelling house, which is a permissible use in the R1 General Residential zone in which the site is located, pursuant to the Leichhardt Local Environmental Plan 2013 (LLEP).

• The proposed development complies with the development standards in the LLEP concerning floor space ratio, site coverage and landscaped area.

• Clause 6.2 of the LLEP concerns earthworks and applies to the site. The proposed development includes excavation for the swimming pool. Based on the Statement of Environmental Effects that accompanies the Class 1 Application, I have considered the matters listed at cl 6.2(3) of the LLEP.

• Clause 6.4 concerns stormwater management and applies to the site. Based on the Statement of Environmental Effects, I am satisfied that the development will be drained using the existing system and therefore avoids any adverse impacts of stormwater runoff.

• The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of cl 27 of the EPA Regulation.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The development application was notified for a period of 20 days, from 14 April 2022 to 3 May 2022. One submission was received during that period. Based on the agreed statement of the parties, I have considered the issues raised in that submission.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, 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.

8. The Court notes that:

1. The Respondent, as the relevant consent authority, has agreed to the Applicants amending the Application Class 1, pursuant to clause 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, so as to rely on the following amended materials:

Document Description	Prepared By	Date
Architectural plans: (a) Drawing number A1 – Site Analysis Plan (Issue 2) (b) Drawing number A6 – Proposed Ground Floor Plan (Issue 2) (c) Drawing number A7 – Proposed First Floor Plan (Issue 2) (d) Drawing number A8 – Proposed Roof Plan (Issue 2) (e) Drawing number A9 – Proposed Elevations – Sheet 1 (Issue 2) (f) Drawing number A10 – Proposed Elevations Sheet 2 (Issue 2) (g) Drawing number A11 – Proposed Elevations – Sheet 3 (Issue 2) (h) Drawing number A12 – Proposed Section – Sheet 1 (Issue 2) (i) Drawing number A13 – Proposed Section Sheet 2 (Issue 2)	Serrao Design Studio	Various, as stated
BASIX Certificate Number 1275461S	DA PLANS Sydney	12 November 2022

2. The Applicants filed the abovementioned amended materials with the Court on 14 November 2022.

3. Pursuant to clauses 37(7) and 38(4) of the Environmental Planning and Assessment Regulation 2021, the Applicants are not required to upload the abovementioned amended materials to the NSW Planning Portal.

9. The Court orders that:

1. The appeal is upheld.

2. Development Application number DA/2022/0241, as amended, for alterations and additions to the ground and first floor levels of the existing dwelling, associated works and swimming pool on land identified as Lot 1 in Deposited Plan 910369, and known as 159 Flood Street, Leichhardt NSW 2040 is approved subject to the conditions included at Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (210241, pdf)

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Amendments

30 November 2022 - Updated Legal Representatives for the Applicant and the Respondent.

Decision last updated: 30 November 2022