Parisi v Inner West Council

[2021] NSWLEC 1216

Land and Environment Court

New South Wales

Medium Neutral Citation:

Parisi v Inner West Council [2021] NSWLEC 1216

Hearing dates:

Conciliation conference on 9 April 2021

Date of orders:

30 April 2021

Decision date:

30 April 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The application in proceedings 2021/55816 to modify DA/2020/0286 made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 is approved.

(2) Development consent granted by the Court in proceedings number 177043 of 2020 (Parisi v Inner West Council [2020] NSWLEC 1601) being DA/2020/0286, relating to land identified as Lot 8 in Deposited Plan 11121 and known as 2 Caroline Street, Balmain NSW 2041, is modified by amending condition number 2 (b) in accordance with the modified Conditions of Consent annexed and marked Annexure “A”.

(3) The Modification Application amended Consent Condition 2 (b) incorporated into the Original Consent DA/2020/0286 as a consolidated set of conditions pertaining to 2 Caroline Street, Balmain – as annexed and marked Annexure “B”.

Catchwords:

MODIFICATION APPLICATION – ground floor levels of garages to comply with Australian Standard AS2890.1-2004 – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Leichhardt Local Environmental Plan 2013

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

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

Parisi v Inner West Council [2020] NSWLEC 1601

Texts Cited:

Australian/New Zealand Standard AS/NZS 2890.1:2004 Parking Facilities Part 1: Off-street Car Parking

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Gary Gaetano Anthony Parisi (Applicant)
Inner West Council (Respondent)

Representation:

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

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

File Number(s):

2021/55816

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an application made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent granted by the Land and Environment Court of New South Wales (Court).

2. On 3 December 2020, in Court proceedings number 177043 of 2020 and known as Parisi v Inner West Council [2020] NSWLEC 1601 (Original Proceedings), the Court made orders in accordance with an agreement reached between the parties to uphold the appeal and grant development consent to DA/2020/0286 (DA) for demolition of the existing dwelling, subdivision of the site and construction of 2, two-storey townhouses with on-site parking, subject to conditions (Consent), at 2 Caroline Street, Balmain (Site).

3. On 26 February 2021, the Application Class 1 was filed with the Court instituting the subject proceedings (Current Proceedings) and sought orders that the Consent be    modified by rewording Condition 2(b) of the Consent (Condition 2(b)) only.

4. On 7 April 2021, the parties filed an agreement under s 34(3) of the Land and Environment Court Act 1979 (LEC Act) for the orders proposed in the Current Proceedings to be made (Agreement).

5. The Court had arranged a conciliation conference under s 34(1) of the LEC Act, which was held on 9 April 2021. I presided over the conciliation conference, and further information was given to me in order that I could reach a decision. This decision involved the Court upholding the appeal to grant the modification application. Pursuant to s 4.55(8) of the EPA Act the provisions of s 4.55 extend to enable the Court to modify a consent granted by it. The Court granted the Consent in the Original Proceedings.

The Subject Site

6. The subject site is legally identified as Lot 8 in Deposited Plan 11121 and known as 2 Caroline Street, Balmain NSW 2041.

7. The Site has a total area of 423.5m², by survey.

8. The Site is zoned R1 General Residential pursuant to the Leichhardt Local Environmental Plan 2013 (LLEP2013).

9. The Site is not listed as an item of environmental heritage significance; however, it    does contain archaeology associated with “Waterview House” and is situated within the ‘Waterview Estate’ Heritage Conservation Area (cl 5.10 of the LLEP2013).

Proposed Modification

10. Condition 2(b) provides:

2. Design Change

Prior to the issue of Construction Certificate, the Certifying Authority must be provided with amended plans incorporating the following amendments:

…

b) The ground floor levels of the garage doors of Dwelling 2A and Dwelling 2B are to be raised by 180mm and the height of the garage doors are to be raised 200mm.

…

11. Condition 2(b) was devised and agreed to by the respective heritage experts of the parties during the Original Proceedings and is set out at Part 2.3 of the Supplementary Joint Expert Heritage Report filed on 16 October 2020 in the Original Proceedings. It was intended to provide appropriate façade proportions for the approved dwellings.

12. The Applicant proposes in the Current Proceedings to modify the wording Condition 2(b) to read as follows (Proposed Modification):

2.   Design Change

Prior to the issue of Construction Certificate, the Certifying Authority must be provided with amended plans incorporating the following amendments:

…

b) The ground floor level of the garage door of Dwelling 2A is to be RL13.105 and the ground floor level of the garage door of Dwelling 2B is to be RL13.264 to comply with ground clearance requirements of Australian Standard AS2890.1-2004. The respective head heights of the garage doors and entry porches are to be raised to align with the nearest stone coursing with a minimum of 2200mm head clearance.

…

13. In the preparation of amended architectural plans towards an application for a construction certificate, the Applicant has been advised by his consulting architect and civil engineer that compliance with Condition 2(b) cannot be achieved whilst also achieving compliance with Australian/New Zealand Standard AS/NZS 2890.1:2004 Parking facilities Part 1: Off-street car parking (Parking Standard), which is a requirement of condition 25 of the Consent.

14. Specifically, strict compliance with Condition 2(b) will result in non-compliance with the maximum driveway gradient requirement under the Parking Standard and would result in cars scraping on the ground upon entry to, and exit from, the garages of the approved dwellings.

15. Condition 25 of the Consent provided detailed design requirements to comply with the Parking Standard prior to the issue of the construction certificate. Condition 2(b) was agreed by the heritage experts during the Original Proceedings. The insertion of Condition 2(b) lead to the inherent conflict between Condition 2(b) and Condition 25, and it must be resolved before the Applicant can obtain a construction certificate for the development. Resolution of this inherent conflict is achieved through the Proposed Modification.

16. The façade proportion outcomes intended by the heritage experts (through imposing Condition 2(b)) are achieved through the requirement of the Proposed Modification for the respective head heights of the garage doors and entry porches to be raised to align with the nearest stone coursing and through other conditions of the Consent.

Legislation

Environmental Planning and Assessment Act 1979

4.15   Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)  the provisions of—

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)    (Repealed)

that apply to the land which the development application relates,

4.55   Modification of consents—generally (cf previous s 96) 

(1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification. 

Note— 

Section 380AA of the Mining Act 1992 provides that an application for modification of development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned. 

(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— 

(a)  it is satisfied that the proposed modification is of minimal environmental impact, and 

(b)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and 

(c)  it has notified the application in accordance with— 

(i)  the regulations, if the regulations so require, or 

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and 

(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. 

Subsections (1), (2) and (5) do not apply to such a modification. 

…

(3)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. 

(4)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. 

…

(8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court. 

8.14   Powers of Court on appeals (cf previous s 39(6A) Land and Environment Court Act)

(1)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(2)  The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.

(3)  If the consent authority was under this Act required to consult or obtain the concurrence of another person or body before making the decision the subject of an appeal under this Division—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence has been granted, and

(b)  in a case where the concurrence has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(4)  If an appeal under this Division relates to integrated development—

(a)  the Court may determine the appeal whether or not the consent authority has obtained general terms of approval from each relevant approval body, and

(b)  the Court is not bound to refuse an application for development consent because a relevant approval body has decided that general terms of approval will not be determined or has decided not to grant a relevant approval, and

(c)  the Court may determine an appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of a relevant approval body.

Land and Environment Court Act 1979

17   Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

(d)  appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979,

…

39   Powers of Court on appeals

(1)  In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)  In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)  The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6)  Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b)  in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A)    (Repealed)

(7)  The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

(8)  This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

17. Leichhardt Local Environmental Plan 2013: the Site falls within the Zone R1 Residential. The objectives of the zone include relevantly:

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

“Clause 5.10 (4) the Site is located within the Waterview Estate Heritage Conservation Area”

Leichhardt Development Control Plan 2013

18. C36 and C37 set the requirements for domestic car parking which include compliance with the Parking Standard.

Jurisdictional Prerequisites

19. The Applicant of the Current Proceedings is the owner of the Site.

Modification of Development Consent

20. Pursuant to s 4.55(8) of the EPA Act the provisions of s 4.55 extend to enable the Court to modify a consent granted by it. In this regard:

1. The Respondent agrees with the Applicant and is satisfied that, for the purpose of s 4.55(1A) of the EPA Act, the Proposed Modification should be considered under this sub-section as it is of minimal environmental impact;

2. The Respondent agrees with the Applicant and is satisfied that, for the purposes of s 4.55(1A)(b) of the EPA Act, the development to which the consent as modified relates is substantially the same development as the development for which the Consent was originally granted (and it not having been previously modified):

1. The Consent relates to the demolition of the existing dwelling, subdivision of the site and construction of 2, two-storey townhouses with on-site parking;

2. The Proposed Modification involves a rewording of Condition 2(b) only and the development, as modified by the Proposed Modification, remains described as the demolition of the existing dwelling, subdivision of the site and construction of 2, two-storey townhouses with on-site parking.

3. The Respondent has undertaken notification of interested parties and has not received any submissions, for the purposes of s 4.55(1A)(c) and (d) of the EPA Act (addressed further below).

Matters for Consideration under s 4.15(1) of the EPA Act

21. The Respondent agrees with the Applicant and is satisfied that the Proposed Modification does not change conclusions reached in relation to the applicable State and Regional environmental planning policies.

22. The Respondent agrees with the Applicant and is satisfied that the Proposed Modification does not change conclusions reached in relation to the relevant provisions of the LLEP2013.

23. The Respondent has considered the Proposed Modification in respect of the following relevant parts of the Leichhardt Development Control Plan 2013 (LDCP2013):

1. Part B1.1 Connections – Objectives;

2. Part C1.0 General Provisions;

3. Part C1.4 Heritage Conservation Areas and Heritage Items;

4. Part C1.11 Parking;

5. Part C2.2.2.5 Mort Bay Distinctive Neighbourhood.

24. Having considered the above parts of the LDCP2013, the Respondent agrees with the Applicant and is satisfied that the Proposed Modification is acceptable as:

1. It will not have a detrimental impact on the heritage conservation area;

2. It will facilitate compliance with the Parking Standard in relation to driveway gradients.

25. The Respondent agrees with the Applicant and is satisfied that the Proposed Modification will not have any detrimental environmental, social or economic impacts in the locality.

26. The Respondent agrees with the Applicant and is satisfied that the Site is suitable to accommodate the development, as modified.

25. The Respondent has not received any submissions related to the Proposed Modification is in the public interest.

Merit issues resolved

28. The Respondent has considered the Proposed Modification and is satisfied that it is acceptable, and the Consent can be modified in the proposed manner.

Notification and public interest considerations

29. The Respondent has notified objectors to the DA of the Proposed Modification. The    notifications were sent on 29 March 2021. Further the solicitor for Council, Mr Allam, spoke to several of the former objectors but none of them indicated they would object to the Proposed Modification. There were no written or oral objections.

30. Further the Respondent has not received any requests from objectors to the DA to    address the Court on the Proposed Modification.

31. The Respondent is satisfied that the public interest is served though the granting of the Proposed Modification.

Power of the Court to Make Orders

32. The Agreement reached between the parties is on terms of a decision in the proceedings that would be acceptable to the parties being a decision the Court could have made in the proper exercise of its functions.

33. Therefore, pursuant to s 34(3) of the LEC Act, the parties request that Commissioner disposes of the proceedings in accordance with the decision set out in the Agreement.

34. 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. Pursuant to s 4.55 (8) of the EPA Act the provisions of s 4.55 extend to enable the Court to modify a consent granted by it. In this regard:

1. The Court has power to modify the consent (s 8.14 of the EPA Act).

2. The Proposed Modification is of minimal environmental impact. (s 4.55 (1A) (a) of the EPA Act).

3. The development pursuant to the Proposed Modification is substantially the same development as was approved by this Court in the Original Proceedings (s 4.55 (1A) (b) of the EPA Act).

4. The Proposed Modification involves a rewording of Condition 2 (b) to alter the ground floor levels of the 2 garages to comply with the Parking Standard (as required in LDCP2013).

5. The Applicant and Respondent considered the Modification Application in relation to the LDCP2013, and in particular in relation to Part C1.4 Heritage Conservation Areas and heritage Items. The Applicant obtained advice from Ms Jennifer Hill, heritage architect, and her email of advice dated 24 February 2021 is Annexure “I”, and the Oikos Architects Drawing    Elevation-Northeast (Caroline Street) No.2017/14/DA/2.01 issue G dated 12/10/20 marked in Red for the Consent and Blue for the Proposed Modification is Annexure “II” to this judgment. Ms Hill stated in her email, inter alia:

“The proposed modification to condition 2 (b) has a negligible impact on the appearance of the dwellings and will not have a detrimental impact on the Caroline Street streetscape or the Waterview Estate heritage Conservation Area as the dwellings are new infill development which complement the overall historic scale and character of development in the immediate context.”

The Respondent has no objection to the Proposed Modification on the grounds of heritage impact.

6. I am satisfied that the relevant provisions of s 4.15 have been addressed, and in this Modification Application that means a consideration of the car parking and heritage impact which would arise    as a result of the proposed amendment to Condition 2(b).

7. The Respondent notified the objectors to the Original Proceedings, and spoke to some of them. The Respondent has not received any submissions from the former objectors, nor has it received a request to address the s 34 Conciliation Conference (s 4.55(1A)(d) of the EPA Act).

8. The Respondent is satisfied that the public interest is served through the granting of the Proposed Modification.

9. The Proposed Modification does not contravene the EPA Act, or any environmental planning instruments formerly considered in the Original Proceedings –

• Environmental Planning and Assessment Regulation 2000

• Heritage Act 1977

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

• State Environmental Planning Policy No 55 – Remediation of Land

• State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

• Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Therefore the Court may exercise its function under s 4.55 (1A) and s 8.14 of the EPA Act to grant the Proposed Modification and modify the Consent.

35. 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) and s 39 of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

36. The Court orders:

1. The application in proceedings 2021/55816 to modify DA/2020/0286 made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 is approved.

2. Development consent granted by the Court in proceedings number 177043 of 2020 (Parisi v Inner West Council [2020] NSWLEC 1601) being DA/2020/0286, relating to land identified as Lot 8 in Deposited Plan 11121 and known as 2 Caroline Street, Balmain NSW 2041, is modified by amending condition number 2 (b) in accordance with the modified Conditions of Consent annexed and marked Annexure “A”.

3. The Modification Application amended Consent Condition 2 (b) is incorporated into the Original Consent DA/2020/0286 as a consolidated set of    conditions pertaining to 2 Caroline Street, Balmain – as annexed and marked Annexure “B”.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure I (758099, pdf)

Annexure II. (1121159, pdf)

Annexure A (212201, pdf)

Annexure B (216169, pdf)

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Decision last updated: 30 April 2021