Morad v Inner West Council

[2020] NSWLEC 1242

Land and Environment Court

New South Wales

Medium Neutral Citation:	Morad v Inner West Council [2020] NSWLEC 1242
Hearing dates:	Conciliation conference on 25 May 2020
Date of orders:	04 June 2020
Decision date:	04 June 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development Application No. 2019/68 for alterations and additions to an existing dwelling and boatshed, new swimming pool and associated works including conservation works and tree removal at 14 Clifton Street, Balmain East, is approved, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Statement Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)
Category:	Principal judgment
Parties:	Mohammad Morad (Applicant) Inner West Council (Respondent)
Representation:	Counsel: A Boskovitz (Solicitor) (Applicant) Dr J Smith (Respondent)   Solicitors: Boskovitz Lawyers (Applicant) Inner West Council (Respondent)
File Number(s):	2019/294219
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act) against the refusal of Development Application No. 2019/68 for alterations and additions to an existing dwelling and boatshed, new swimming pool and associated works including conservation works and tree removal (the proposal) at 14 Clifton Street, Balmain East (the site) by Inner West Council (the Council).

2. Following the Court’s policy, “COVID-19 Further Restrictions” announced on 24 March 2020 and published on the Court’s website, the proceedings were listed for a conciliation conference under s 34AA of the Land and Environment Court Act1979 (LEC Act) on 25 May 2020. I presided over the conciliation conference.

3. One resident objector gave oral evidence at the commencement of the conciliation conference. His concerns can be summarised as follows:

• access to his property may be obstructed during construction and access is particularly important during an emergency;

• the proposal includes 7 bedrooms, including accommodation in the boatshed, and this may be used for short-term tourist accommodation; and

• short-term tourist accommodation will exacerbate the on-street parking in the locality.

4. In response to the objection, the applicant submitted that the proposal is for a single-family dwelling and a residential use and the Council submitted that there are conditions of consent requiring all materials to be stored onsite during construction.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

6. 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’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cl 7 of the Statement Environmental Planning Policy No 55—Remediation of Land (SEPP 55) and cll 5.10(4) and 6.4 of the Leichhardt Local Environmental Plan 2013 (LEP 2013).

8. The Court granted the applicant leave to amend the application on 6 May 2020 to rely on an amended proposal and further information that responded to the contentions raised by the Council.

9. The site is zoned R1 General Residential pursuant to LEP 2013. The objectives of the R1 zone, to which regard must be had, are:

• 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.

10. I accept the Council’s submission that the site will be suitable for the purpose for which the development is proposed to be carried out, based on the Detailed Site Investigation Report and Remedial Action Plan prepared by EI Australia and dated 13 December 2019 submitted in support of the application which identifies the contamination issues on the site and the extent of the remediation works for which consent is granted.

11. The site is identified as a heritage item (Schedule 5, LEP 2013 Item 363 “House, including interiors”). I have considered the effect of the proposal on the heritage significance of the heritage item, and I am satisfied that the amendments made to the proposal, including reducing the bulk of the proposal and retaining views of the original cottage from the harbour, result in a development that will have a satisfactory impact on the identified heritage significance of the item.

12. I am satisfied that the proposal minimises the impacts of urban stormwater on the site, as required by cl 6.4 of LEP 2013, based on the Council’s submission and the Landscape Plan LA-01 Rev C relied upon in the application.

13. I am satisfied that the proposal is consistent with cl 26 of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 because the amendments made to the proposal result in a development that maintains, protects and enhances views (including night views) to and from Sydney Harbour.

Orders

14. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2019/68 for alterations and additions to an existing dwelling and boatshed, new swimming pool and associated works including conservation works and tree removal at 14 Clifton Street, Balmain East, is approved, subject to the conditions of consent at Annexure A.

____________________

Susan O’Neill

Commissioner of the Court

Annexure A (383263, pdf)

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Decision last updated: 04 June 2020