Parisi v Inner West Council

[2022] NSWLEC 1676

Land and Environment Court

New South Wales

Medium Neutral Citation:

Parisi v Inner West Council [2022] NSWLEC 1676

Hearing dates:

Conciliation conference on 21 October and 4 November 2022, final agreement filed 4 November 2022

Date of orders:

06 December 2022

Decision date:

06 December 2022

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicants to amend DA2020/0286 and rely on the amended plans and documents included at Annexure A.

(2) The appeal is upheld.

(3) Development Consent DA2020/0286 is modified in the terms set out at Annexure B.

(4) Development Consent DA2020/0286 as modified by the Court is set out at Annexure C.

Catchwords:

MODIFICATION APPLICATION – dwelling house development – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, s 113

Land and Environment Court Act 1979, s 34

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

Inner West Local Environmental Plan 2022, cll 4.1, 4.3C, 4.4, 5.10, 6.1, 6.2, 6.3

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)

Category:

Principal judgment

Parties:

Gary Gaetano Anthony Parisi (First Applicant)
Joseph Gerald Griffin (Second Applicant)
Inner West Council (Respondent)

Representation:

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

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

File Number(s):

2022/254396

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal concerns a Modification Application (the MA) which seeks to further modify the parent Development Consent DA2020/0286 (the DA), which originally granted consent for the demolition of an existing dwelling, subdivision of the site and construction of two, two-storey townhouses with on-site parking at 2 Caroline Street, Balmain (the site).

2. Consent for this parent DA was granted by the Court on 3 December 2020. On 30 April 2021, an earlier MA was approved by the Court. On 4 February 2022, and consistent with the terms of the parent DA consent, the site was subdivided to form two registered Torrens title lots.

3. The current proceedings relate to a second MA, made directly to the Court and filed on 29 August 2022, pursuant to s 4.55(8) of the EPA Act.

4. Specifically, this MA seeks approval for a series of refinements to the detailed design of the two dwellings to amend various ground levels, reconfigure entry steps, provide for the inclusion of retaining walls and introduce a new pergola at the rear of one dwelling, amongst other minor design amendments.

5. Additionally, the MA seeks to amend the description of the development to reflect the site having been lawfully subdivided under the terms of the parent DA. The description of the development now sought is “demolition of the existing dwelling, subdivision of the site into two Torrens titled lots and construction of a two-storey dwelling house on each lot with on-site parking.”

6. Finally, the MA seeks to delete a number of design amendments required within the conditions of consent as a consequence of their inclusion in the final amended architectural plans accompanying these proceedings.

7. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 October and 4 November 2022. I presided over the conciliation conference.

8. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, and at the request of the parties, the matter was conducted in person and by Microsoft Teams.

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

10. 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 4.55(8) of the EPA Act to modify the existing DA.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

12. In that regard, I am satisfied the MA has been made with the consent of the owners of the land. The First Applicant is a registered proprietor of the recently created Lot 2. The Second Applicant is the registered proprietor of the recently created Lot 1. Both Applicants have provided written consent with the lodgement of the MA.

13. The parties agree, and I am satisfied, that pursuant to s 4.55(2)(a) of the EPA Act, the MA remains substantially the same as the parent DA.

14. The parties agree, and I am satisfied, that the MA was notified in accordance with the Respondent’s Community Participation Plan to objectors of the parent DA. The Respondent received no submissions in response to the notification.

15. The parties agree, and I am satisfied, that the Inner West Local Environmental Plan 2022 (IWLEP) is a relevant environmental planning instrument. The site is zoned R1 General Residential and the proposed development - now characterised as two, two-storey dwelling houses, each with on-site parking - is permissible with consent, and that the MA (as amended) maintains the objectives of the R1 zone.

16. The parties agree, and I am satisfied, that all principal development standards of the IWLEP are maintained by the MA (as amended). Specifically, the final agreed design amendments result in no non-compliances with development standards set out at:

1. Clause 4.1, Minimum subdivision lot size;

2. Clause 4.3C, Landscaped areas for residential accommodation in Zone R1, and;

3. Clause 4.4, Floor space ratio.

17. The parties agree, and I am satisfied, that pursuant to cl 5.10, Heritage conservation, of the IWLEP, the site is not an identified heritage item and that the final amended MA is consistent with the terms of cl 5.10.

18. The parties agree, and I am satisfied, that pursuant to cl 6.1, Acid sulfate soils, of the IWLEP, the MA remains consistent with the parent DA and raises no further considerations under the terms of cl 6.1.

19. The parties agree, and I am satisfied, that pursuant to cl 6.2, Earthworks, of the IWLEP, the final amended MA, now proposing some minor additional excavation, is consistent with the objectives of cl 6.2.

20. The parties agree, and I am satisfied, that pursuant to cl 6.3, Stormwater management, of the IWLEP, the final amended MA, now proposing some minor additional excavation, is consistent with the objectives of cl 6.3.

21. The parties agree, and I am satisfied, that the MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. Two revised BASIX certificates, dated 5 August 2022, have been submitted with the amended MA. Conditions of consent are imposed to ensure compliance with the BASIX certificate.

22. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

23. The Court notes that:

1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicants have amended the MA with the agreement of the Respondent.

2. The Applicants have filed the amended MA with the Court on 2 November 2022.

Orders

24. The Court orders that:

1. Leave is granted to the Applicants to amend DA2020/0286 and rely on the amended plans and documents included at Annexure A.

2. The appeal is upheld.

3. Development Consent DA2020/0286 is modified in the terms set out at Annexure B.

4. Development Consent DA2020/0286 as modified by the Court is set out at Annexure C.

M Pullinger

Acting Commissioner of the Court

**********

Annexure A 

Annexure B

Annexure C 

Decision last updated: 06 December 2022