Morrison v Inner West Council
[2022] NSWLEC 1390
•22 July 2022
Land and Environment Court
New South Wales
Medium Neutral Citation: Morrison v Inner West Council [2022] NSWLEC 1390 Hearing dates: Conciliation conference on 14, 15 July 2022 Date of orders: 22 July 2022 Decision date: 22 July 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court Orders:
(1) The appeal is upheld.
(2) Development Application number DA/2021/0603, as amended, for alterations and additions to the existing dwelling house and associated works including tree removal and new front fence on land identified as Lot 5 in Deposited Plan 708952 and known as 39 Short Street, Birchgrove, is determined by the grant of consent, subject to the conditions included at Annexure “A”.
Catchwords: DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7
Environmental Planning and Assessment Regulation 2021 cl 38
Land and Environment Court Act 1979 s 34
Leichhardt Local Environmental Plan 2013 cll 2.3, 4.3A, 4.4, 5.10, 6.1, 6.2
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6
Texts Cited: Leichhardt Development Control Plan 2013
Category: Principal judgment Parties: Benjamin Robert Morrison (First Applicant)
Kathryn Amy Morrison (Second Applicant)
Inner West Council (Respondent)Representation: Counsel:
Solicitors:
S Griffiths (Solicitor) (Applicants)
L Mulligan (Solicitor) (Respondent)
Bartier Perry Pty Limited (Applicants)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2022/88539 Publication restriction: No
Judgment
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COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, related to an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the respondent’s refusal of development application DA/2021/0603 (DA). The DA sought consent for alterations and additions to the existing dwelling house and associated works at 39 Short Street, Birchgrove, legally described as Lot 5 in DP 708952 (site).
Conciliation and agreement between the parties
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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 14 and 15 July 2022. I presided over the conciliation conference.
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By the conclusion of the conciliation conference, the parties had come to an 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, subject to amended plans, and granting consent to the development application subject to conditions.
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In relation to the amendments to the DA, I note the advice of the parties that the respondent, as the relevant consent authority, has approved the applicant’s application to amend the DA, pursuant to cl 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021. The DA is now amended to incorporate the materials referenced in the agreed conditions at Annexure “A” (Condition 1). The applicant filed the agreed amended material with the Court on 15 July 2022.
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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
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The parties’ decision involves the Court exercising the consent authority 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 in a statement of jurisdictional reasons, provided to the Court on 15 July 2022. In regard to jurisdiction and having regard to this statement, I find as follows:
State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation).
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As the proposal includes the removal of existing vegetation from within the site, SEPP Biodiversity and Conservation applies. Development consent is required to remove vegetation in a heritage conservation area and the Amended DA seeks that consent. The respondent has considered the application and considers that the removal of 4 x Magnolia grandlifora can be supported subject to replacement planting, which has been required by way of condition. This is a satisfactory outcome in my opinion, and I am satisfied that the Amended DA is acceptable with respect to SEPP Biodiversity and Conservation.
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)
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Pursuant to cl 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I am advised by the parties that the respondent has considered whether the site is contaminated and, on account of the site being historically used for residential purposes with no known history of potentially contaminating uses and events, is satisfied that:
No further investigation of the site is warranted; and
Subject to conditions, the site is considered to be suitable for the proposal, as amended by the Amended DA.
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On this basis, I am satisfied that the requirements of SEPP Resilience and Hazards are met.
Leichhardt Local Environmental Plan 2013 (LLEP)
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I note the proposal is for alterations and additions to a dwelling house, permissible development in the R1 General Residential zone in LLEP. I have had regard to the zone objectives as required under cl 2.3(2).
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In regard to development standards, I note that LLEP does not include a height of buildings standard for the site. I also accept the advice of the parties that the proposal complies with the landscaped area and site coverage standards as applicable under cll 4.3A and the floor space ratio controls under cl 4.4.
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As the site falls within a heritage conservation area, under cl 5.10(4), there is a need to consider the effect of the proposed development on the heritage significance of the area concerned. The heritage experts deliberated considerably in to coming to what was agreed to be an acceptable resolution of heritage-related concerns and coming up with agreed plan amendments to this end. I accept the agreed advice of the parties that the proposal is acceptable in regard to heritage conservation.
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The site is classified as Class 5 acid sulphate soils land and is located within 500m of Class 2 land. I accept the advice of the parties that because the proposal would not involve works below 5m Australian Height Datum and would not lower the water table below 1m Australian Height Datum on adjacent Class 1, 2, 3 or 4 land, the proposal does not require consent under cl 6.1, and an acid sulphate soils management plan is not required.
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The DA includes minor works that are defined as earthworks under LLEP. This means I need to consider the matters listed at subcl 6.2(3)(a)-(h). The parties advise me that the respondent has considered those matters in its assessment of the DA and that appropriate conditions of consent have been included. I accept this advice.
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In regard to stormwater management, development consent must not be granted unless the consent authority is satisfied in relation to the matters listed at subcl 6.4(3)(a)-(c). Again, I am advised that the respondent has considered these matters and is itself satisfied. With this advice, I too am satisfied in regard to each of the listed matters subject to the agreed conditions of consent.
Other provisions of s 4.15(1) of the EPA Act
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In regard to s 4.15(1)(a)(ii) of the EPA Act, the parties have drawn to my attention the fact of Draft Leichhardt Local Environmental Plan 2020. But essentially nothing of substance turns on this proposed instrument.
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The parties have provided me with advice in regard to the provisions of Leichhardt Development Control Plan 2013. I have considered this advice and in turn believe the requirements of s 4.15(1)(a)(iii) of the EPA Act, have been met.
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The parties advise the proposal was notified in accordance with requirements and objecting submissions were received in regard to the proposal. I note I also heard from two objectors on site. The parties, both orally and in writing, have provided me with an outline of the objections and explanation of how they have each been addressed. I have had regard to these objecting submissions in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act.
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I have also given attention to the likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(b), (c) and (e) of the EPA Act.
Conclusion
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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. It follows that I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
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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.
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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.
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The Court orders:
The appeal is upheld.
Development Application number DA/2021/0603, as amended, for alterations and additions to the existing dwelling house and associated works including tree removal and new front fence on land identified as Lot 5 in Deposited Plan 708952 and known as 39 Short Street, Birchgrove, is determined by the grant of consent, subject to the conditions included at Annexure “A”.
……………………….
Peter Walsh
Commissioner of the Court
Annexure A (286390, pdf)
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Decision last updated: 25 July 2022
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