Molesworth v Inner West Council

[2019] NSWLEC 1191

Land and Environment Court

New South Wales

Medium Neutral Citation:	Molesworth v Inner West Council [2019] NSWLEC 1191
Hearing dates:	Conciliation conference on 24 April 2019
Date of orders:	30 April 2019
Decision date:	30 April 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See orders at [29] 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 No 55 – Remediation of Land
Cases Cited:	Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	AS 2021:2015 Acoustics – Aircraft Noise Intrusion - Building Siting and Construction
Category:	Principal judgment
Parties:	Daniel Molesworth (First Applicant) Briony Molesworth (Second Applicant) Inner West Council (Respondent)
Representation:	Solicitors: D Briggs, D Briggs and Associates (Applicants) G Christmas, Apex Planning and Environment Law (Respondent)
File Number(s):	2018/380639
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s deemed refusal of development application D/2018/291 (DA). The DA sought approval for lower ground, ground and first floor alterations and additions to an existing dwelling-house and associated works at 224 Annandale Street, Annandale (site).

Conciliation and agreement between the parties

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 24 April 2019. I presided over the conciliation conference.

3. At the conciliation conference, the parties evidenced agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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.

Jurisdiction

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified certain jurisdictional prerequisites of relevance in these proceedings and how they have been or could be satisfied.

6. I accept the advice of the parties that the DA was properly made. I note the proposal is for alterations and additions to a dwelling house, permissible development in the R1 General Residential zone in Leichhardt Local Environmental Plan 2013 (LEP). I have had regard to the zone objectives in accordance with cl 2 of the LEP.

7. As the site falls within a heritage conservation area and is near to listed heritage items, under cl 5.10(4) of the LEP there is a need to consider the effect of the proposed development on the heritage significance of the item or area concerned. The heritage items in proximity are certain ”street trees” in the Annandale Street site frontage environs (Item I9 in Schedule 5 of the LEP) and a ‘former shop and residence including interiors’ at 216 Annandale Street (Item I3 in Schedule 5 of the LEP). The proposal gives appropriate attention to heritage concerns in Annandale Street through the design configuration, which retains the essence of the single storey front façade and in effect complete retention of the simple roof structure to Annandale Street. The requirements of cl 5.10(4) have been considered. I also note the objecting submission in regard to heritage concerns and believe this submission has been appropriately considered.

8. The site is subject to aircraft noise under the provisions of cl 6.8 of the LEP. In turn I am required to consider:

whether the development will result in the creation of a new dwelling or an increase in the number of dwellings or people affected by aircraft noise, and

the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021—2015, and

whether the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021—2015.

9. I have given consideration to these matters and note that Condition 4 requires acoustic attenuation construction methodology in terms of AS 2021:2015 Acoustics – Aircraft Noise Intrusion - Building Siting and Construction.

10. Clause 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), requires a consent authority to consider several matters before granting development consent. The parties’ advice is that the land is not known to be contaminated. I note that should it come to pass during construction stages that new information is revealed that has the potential to alter previous conclusions about site contamination, then a condition (Condition 46) is imposed to require immediate notification of the Council and the Principal Certifying Authority. I am of the view that the requirements of cl 7 of SEPP 55 are satisfied.

Consideration of site coverage contravention

11. Clause 4.3A of the LEP applies to the site and provides, relevantly, that:

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

…

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

12. The circumstances in this case are the site coverage decreases with the subject proposal, however there is still an exceedance of the 60% site coverage standard.

13. The applicants (via their planning advisors Burrell Threlfo Pagan Pty Ltd) have submitted a written request seeking to justify the contravention.

14. There are permissive powers in cl 4.6(2) of the LEP which allow for development consent to be granted for a development that contravenes a development standard. The opening up of this facultative power is subject to preconditions. The first precondition is concerned with the consideration of a written request from the applicant seeking to justify the contravention (in this case a written request has been provided by the applicant’s planning advisors Burrell Threlfo Pagan Pty Ltd). The second precondition is concerned with more direct opinions which I come to below.

15. The first condition requires me to form two positive opinions of satisfaction in regard to the applicants’ written request. The first of these is that the written request adequately addresses the question of whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)).

16. The written request includes argument to suggest the “the objectives of the development standard are achieved notwithstanding non­compliance with the standard”. This is one of the ways identified, in Wehbe v Pittwater Council [2007] NSWLEC 827, as capable of demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. I have reviewed the objectives of the standard as nominated in the LEP (cl 4.3A(1)) and the content of the written request addressing these objectives as follows:

“To provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents: Although not complying with the site coverage standard, the proposal provides areas on the site suitable for substantial tree planting appropriate for a narrow site in a manner that is generally consistent with the character of development in the immediate locality. The landscaped area for the site complies with Council’s requirements and the current and proposed landscaping will provide a high standard of enjoyment for the occupants.

To maintain and encourage a landscaped corridor between adjoining properties: The proposal maintains the existing landscaped corridor as confirmed in the designer’s site analysis accompanying the application (See Dwg No. A.01).

To ensure that development promotes the desired future character of the neighbourhood: There is no specific desired future character statement enunciated in Council's DCP, however, when the proposal is assessed against the suite of controls for the neighbourhood, it is considered that it performs well and is consistent with the prevailing character of the immediate locality. The proposal is also consistent with the prevailing character as established by the immediate neighbours.

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: The proposal is an acceptable form of ecologically sustainable development which provides for the maximisation of retention and absorption of surface drainage water on site and minimising obstruction to the underground floor of water despite marginally exceeding the site cover in a manner that is consistent with the pattern of development of the locality.

To control site density: This objective is not considered to be relevant.

To limit building footprints to ensure that adequate provision is made for landscaped areas and private open space: As discussed in this statement, the proposed building footprint is generally consistent with the pattern of development in the locality and the dwelling will have an acceptable provision of landscaped area and private open space.”

17. I have considered the above and am satisfied that the written request has adequately addressed the requirement to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

18. The second opinion of satisfaction required of me in regard to the applicants’ written request is that it adequately addresses the requirement to demonstrate there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request suggests the following environmental planning grounds are relevant:

“The existing dwelling does not comply with the standard by a significant degree. The proposal, however, significantly reduces the non-compliance to 2.6% which is equivalent to a non-compliance of 4m² which is miniscule.

Although the site’s site coverage does not comply, the proposal increases the landscaped area from 39.8m² to 41.1m² which is considered to be an environmental benefit and off-setting the site coverage non-compliance.”

19. The fact of the proposal improving the position in terms of compliance with the site coverage standard provides sufficient environmental planning grounds. I am satisfied that the written request has adequately addressed the requirement to demonstrate that there are sufficient environmental planning grounds to justify contravening the standard.

20. The second precondition (cl 4.6(4)(a)) requires me to be directly satisfied in certain ways. The first requires me to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard that is contravened and the objectives for development for the zone in which the development is proposed to be carried out. Further to my comments above, I can confirm, for reasons in alignment the written request, that I am directly satisfied that the proposal is consistent with the objectives of the particular development standard that is contravened.

21. I turn to (relevant) zone objectives, which are as follows:

• To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

•  ...

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

22. The proposal clearly assists in meeting housing needs and would form part of the variety of type and density. There is opportunity for the housing to accommodate working from home. The expert planners have agreed that the housing, following various modifications as developed in dialogue between the parties, is compatible with its surrounds, is sufficient in landscape terms and is satisfactory in regard to amenity impacts. I note the positions of the experts and confirm a direct opinion of satisfaction that the proposal is consistent with the objectives of the zone.

23. In turn I am satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

24. Finally in regard to cl 4.6 there is a requirement that the concurrence of the Secretary be obtained, a power which the Court can assume. I note the site coverage consideration here is local in scope and raises no matters of significance for State or regional environmental planning.

25. The cl 4.6 request to vary the FSR standard the LEP can be upheld.

Conclusion

26. Based on the above details, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 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.

27. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

28. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

29. The Court orders:

1. Leave is granted to the Applicants to rely on the amended architectural and engineering plans referred to in condition 1 of Annexure “A”.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicants are to pay the Respondent’s costs agreed of $1,000.00 within 28 days upon days of the date of the Agreement.

3. The written request pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013 (‘the LEP”) prepared by Burrell Threlfo and Pagan dated 24 April 2019 seeking to justify the contravention by the development of the site coverage development standard in clause 4.3A(3)(b) of the LEP is upheld.

4. The appeal is upheld.

5. Development consent is granted to D2018/291 to carry out alterations and additions to the existing dwelling house on the land known as 224 Annandale Street, Annandale subject to the conditions at Annexure “A”.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A (447 KB, pdf)

Plans (3.80 MB, pdf)

Decision last updated: 30 April 2019