PNPL the Entrance Pty Ltd ATF JWJ Touma Unit Trust v Inner West Council

[2024] NSWLEC 1822

Land and Environment Court

New South Wales

Medium Neutral Citation:

PNPL The Entrance Pty Ltd ATF JWJ Touma Unit Trust v Inner West Council [2024] NSWLEC 1822

Hearing dates:

Conciliation Conference held 13 December 2024

Date of orders:

19 December 2024

Decision date:

19 December 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA/2023/1082 which seeks consent for the demolition of the existing structures, subdivision of the site into two (2) Torrens title allotments and construction of a two (2) storey semi-detached dwelling house on each lot with associated car parking, landscaping and tree removal at 77 Silver Street, St Peters is determined by the grant of consent, subject to the conditions of consent annexed and marked Annexure A.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Inner West Local Environmental Plan 2022, cll 2.6, 2.7, 4.1, 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.8

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 6.1

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, cl 2.1

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited:

Community Engagement Strategy 2022-2024

Category:

Principal judgment

Parties:

PNPL The Entrance Pty Ltd ATF JWJ Touma Unit Trust ACN 115406632 (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/265203

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA/2023/1082 seeking consent for the demolition of existing structures, subdivision of the site into two (2) Torrens title allotments and construction of a two (2) storey semi-detached dwelling house on each lot with associated car parking, landscaping and tree removal (Proposed Development) at 77 Silver Street St Peters NSW 2044 legally described as Lot 1 in DP 1294697 (formerly Lot 28 in DP 1108663 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 13 December 2024. I presided over the conciliation conference.

3. On 15 August 2024, the Court granted the Applicant leave to rely on an amended application consisting of Annexure A to the Affidavit of Matt Sonter, and the proceedings were listed for a conciliation conference and hearing on 29 and 30 January 2025 pursuant to s 34AA of the LEC Act.

4. On 30 August 2024, the Respondent filed its Amended Statement of Facts and Contentions (ASOFAC).

5. On 15 October 2024, the parties’ attended a without prejudice meeting following which the Applicant prepared final amended plans and documents in response to the parties’ without prejudice discussions. The main changes to the Proposed Development made in the amended documentation (Amended Application) provided include:

1. reduction in the ground floor footprint and inclusion of recessed elements within the side elevation of the dwelling;

2. recession of garage doors from front entry, reduction in glazing and incorporation of planter boxes to improve streetscape presentation;

3. amendments to materials and finishes to improve compatibility with locality;

4. provision of advanced specimen with 400L pot size as replacement street tree;

5. provision of medium sized tree within front setback and additional landscaping works on front side setbacks and pedestrian paths;

6. additional tree plantings and planter boxes along the side setback;

7. reduction in window of first floor façade height to 2.7m above floor height;

8. provision of 1.2 metre high central brick pillars in front fencing; and

9. location of stormwater pits amended to mitigate impacts on proposed landscape works.

6. The parties are satisfied that the Amended Application satisfactorily addresses the Respondent’s contentions in the ASOFAC subject to the imposition of conditions.

7. 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. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

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

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

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and the parties explained how the jurisdictional prerequisites have been satisfied.

11. In accordance with s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021, the Development Application was lodged by Mr Elie Sleiman with the consent of the owner of the Site by letter filed with the Class 1 Application.

12. The Development Application was publicly notified from 4 January 2024 to 25 January 2024 in accordance with the Respondent’s Community Engagement Strategy. One submission was received in response to the public notification of the Development Application. The submission of the objector has been taken into account by the parties in the amended application. The Final Plans do not require re-notification in accordance with the Respondent’s Community Engagement Strategy, as it is agreed that the environmental impact of the amendments will be the same or lesser than the original proposal.

13. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) a consent authority must not grant consent to a development unless it has considered whether the Site is contaminated, and if the land is contaminated, is satisfied that the Site is suitable in its contaminated site (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out.

14. The Statement of Environmental Effects (SEE) prepared by Chapman Planning at Tab 3 of the Class 1 Application provides at pp 10-11 that the Site has historically been used for residential purposes and there are no known historic land uses which would deem the Site unsuitable for the proposed development.

15. The Site is not mapped in any of the catchments listed in s 6.1 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021.

16. The Proposed Development is sought to be carried out within 5m of an exposed overhead electricity power line and in satisfaction of s 2.48(2) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP), the Respondent notified Ausgrid, the relevant electricity supply authority. Ausgrid raised no objections to the Proposed Development and has provided recommendations in regards to the underground cables and/or overhead powerlines in the vicinity of the development. These recommendations have been incorporated into the agreed conditions of consent at Annexure A.

17. In compliance with s 2.1 of the State Environmental Planning Policy (Sustainable Buildings) 2022, the Applicant has prepared and provided updated BASIX Certificates dated 29 October 2024.

18. The Site is subject to the Inner West Local Environmental Plan 2022 (IWLEP) pursuant to Land Application Map LAP_001 and is identified on the Land Zoning Map as being zoned R2 Low Density Residential. ‘Semi-detached dwellings’ are permissible with consent in the R2 Low Density Residential Zone.

19. The Proposed Development seeks consent for:

1. subdivision of the Site pursuant to cl 2.6 of the IWLEP in accordance with the Proposed Subdivision Plan Drawing 23135-03/F dated 29 October 2024 prepared by ES Designs; and

2. demolition pursuant to cl 2.7 of the IWLEP in accordance with the Demolition Plan Drawing 23135-02/F dated 29 October 2024 prepared by ES Designs.

20. The Site is not identified on the Lot Size Map LSZ_010 as requiring a minimum lot size resulting from subdivision and as such cl 4.1 of the IWLEP does not apply. In any event, the parties agree that the proposed subdivision will result in two lots with areas of 299.5m² and 299.52m² and is consistent with the predominant subdivision lot pattern of the street.

21. The Proposed Development has a maximum height of 7.6m as shown in Drawing 23135-08/F and 23135-09/F dated 29 October 2024 prepared by ES Designs and is therefore compliant with the maximum building height development standard of 9.5m pursuant to cl 4.3 of the IWLEP.

22. Pursuant to Clause 4.3(2A) of the IWLEP, the Site is not located within Area 1, 2 or 3 and is not subject to this provision.

23. The maximum floor space ratio (FSR) development standard for the purposes of a semi-detached dwelling on land identified as ‘F’ on the FSR Map is 0.8:1 for a site with a site area greater than 250m² but less than 300m² pursuant to cl 4.4(2C) of the IWLEP. The Proposed Development will result in two lots of this size and is identified in ‘F’ on the FSR Map and proposes a compliant FSR of 0.73:1 for each lot as shown on Drawing 23135-04/F dated 29 October 2024 prepared by ES Designs.

24. The Site is not a heritage item or located within a heritage conservation area. Notwithstanding this, the site is 160 metres north of Heritage Item I1740 and the terms of cl 5.10 of the IWLEP regarding Heritage Conservation have been considered by the parties. The parties agree that the Proposed Development will not impact on the visual setting of the heritage item and accordingly will conserve the environmental heritage of Inner West and the heritage significance of heritage items in accordance with the objectives listed at cl 5.10(1) of the IWLEP.

25. The Proposed Development is not located within 500m of class 1, 2, 3 or 4 land and is not likely to lower the water table below 1m AHD as Development Application proposes limited excavation relating to the installation of drainage works, accordingly the terms of cl 6.1 regarding acid sulfate soils are not invoked.

26. Similarly, cl 6.2 of the IWLEP provides that development consent is required for earthworks unless the work is ancillary to other development for which development consent has been granted (Clause 6.2(2)(b)). The proposed earthworks are minimal and are ancillary to the Proposed Development.

27. Pursuant to cl 6.3 of the IWLEP regarding stormwater management, development consent must not be granted unless the consent authority is satisfied that the development:

“is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

avoids a significant adverse impact of stormwater runoff on adjoining properties, native bushland and receiving waters, or if an impact cannot be reasonably avoided, minimises and mitigates the impact.”

28. The Applicant relies on stormwater plans dated 23 October 2024 prepared by Deboke Engineering Consultants which demonstrate to the Court’s satisfaction that the Proposed Development satisfies the jurisdictional prerequisites of cl 6.3 of the IWLEP because it:

1. is designed to maximise the use of water permeable surfaces on the land through the provision of additional landscaping measures;

2. includes on-site stormwater retention for use through the provision of rainwater tanks;

3. avoids a significant adverse impact of stormwater runoff on adjoining properties, native bushland and receiving waters through the collection of stormwater in rainwater tanks as well as connection to existing infrastructure, in compliance with the Council’s engineering guidelines.

29. The Site is not mapped as containing Terrestrial Biodiversity (cl 6.4, IWLEP).

30. The Site is identified as between ANEF 20 and ANEF 25 contours pursuant to the Noise Exposure Forecast Contour Map, accordingly, pursuant to cl 6.8(3) of the IWLEP, in deciding whether to grant development consent, a consent authority must:

“consider whether the development will result in an increase in the number of dwellings or people affected by aircraft noise, and

consider 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

be satisfied 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.”

31. In satisfaction of cl 6.8 of the IWLEP, the Applicant has prepared an Acoustic Report prepared by Anevs-Acoustic Noise and Vibration Solutions dated 8 November 2023 filed with the Class 1 Application at Tab 4. This report addresses the matters in cl 6.8(3) of the IWLEP and concludes that the internal noise attenuation levels for the Proposed 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, subject to the use of recommended materials. Compliance with the recommendations contained within this report has been included in the conditions of consent at Annexure A.

32. 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. I adopt the reasons given by the parties as set out in this judgment.

33. 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.

Notations:

34. The Court notes:

1. Inner West Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA/2023/1082 to rely upon the documents as follows:

Drawing No / Rev	Drawing Title	Prepared By	Date
Architectural Plans
23135-01/F	Site Analysis Plan	ES Designs	29/10/2024
23135-02/F	Demolition Plan	ES Designs	29/10/2024
23135-03/F	Proposed Subdivision Plan	ES Designs	29/10/2024
23135-04/F	Proposed Site Plan	ES Designs	29/10/2024
23135-05/F	Proposed Ground Floor Plan	ES Designs	29/10/2024
23135-06/F	Proposed First Floor Plan	ES Designs	29/10/2024
23135-07/F	Proposed Roof Plan	ES Designs	29/10/2024
23135-08/F	South and West Elevation	ES Designs	29/10/2024
23135-09/F	North and East Elevation	ES Designs	29/10/2024
23135-10/F	Section View	ES Designs	29/10/2024
23135-11/F	Section View – Longitudinal 1	ES Designs	29/10/2024
23135-12/F	Section View – Longitudinal 2	ES Designs	29/10/2024
23135-13/F	Front Fence Details	ES Designs	29/10/2024
23135-14/F	Driveway Grade Details	ES Designs	29/10/2024
23135-15/F	Schedule of External Materials, Colours and Finishes Option C	ES Designs	29/10/2024
23135-16/F	Shadow Diagrams – 21st June 9.00AM	ES Designs	29/10/2024
23135-17/F	Shadow Diagrams – 21st June 10.00AM	ES Designs	29/10/2024
23135-18/F	Shadow Diagrams – 21st June 11.00AM	ES Designs	29/10/2024
23135-19/F	Shadow Diagrams – 21st June 12.00PM	ES Designs	29/10/2024
23135-20/F	Shadow Diagrams – 21st June 1.00PM	ES Designs	29/10/2024
23135-21/F	Shadow Diagrams – 21st June 2.00PM	ES Designs	29/10/2024
23135-22/F	Shadow Diagrams – 21st June 3.00PM	ES Designs	29/10/2024
23135-23/F	Shadow Diagrams Elevational – 21st June 9.00AM	ES Designs	29/10/2024
23135-24/F	Shadow Diagrams Elevational – 21st June 10.00AM	ES Designs	29/10/2024
23135-25/F	Shadow Diagrams Elevational – 21st June 11.00AM	ES Designs	29/10/2024
23135-26/F	Shadow Diagrams Elevational – 21st June 12.00PM	ES Designs	29/10/2024
23135-27/F	Shadow Diagrams Elevational – 21st June 1.00PM	ES Designs	29/10/2024
23135-28/F	Shadow Diagrams Elevational – 21st June 2.00PM	ES Designs	29/10/2024
23135-29/F	Shadow Diagrams Elevational – 21st June 3.00PM	ES Designs	29/10/2024
23135-30/F	Landscape Area Calculation Sheet	ES Designs	29/10/2024
23135-31/F	Gross Floor Area Calculation Sheet	ES Designs	29/10/2024
23135-32/F	BASIX Commitments Dwelling 1	ES Designs	29/10/2024
23135-33/F	BASIX Commitments Dwelling 2	ES Designs	29/10/2024
23135-34/F	NatHERS Commitments Dwelling 1	ES Designs	29/10/2024
23135-35/F	NatHERS Commitments Dwelling 2	ES Designs	29/10/2024
Landscape Plans
LDA-00/E	Landscape Cover Sheet	Ground Ink Pty Ltd	25/10/2024
LDA-01/E	Landscape Plan	Ground Ink Pty Ltd	25/10/2024
LDA-02/E	Plant Palette	Ground Ink Pty Ltd	25/10/2024
LDA-03/E	Landscape Details	Ground Ink Pty Ltd	25/10/2024
Stormwater Plans
S101/05	Specifications Sheet	Deboke Engineering Consultants	23/10/2024
S200/05	Ground Floor Plan	Deboke Engineering Consultants	23/10/2024
S201/05	First Floor Plan	Deboke Engineering Consultants	23/10/2024
S202/05	Roof Plan	Deboke Engineering Consultants	23/10/2024
S300/05	Details Sheet	Deboke Engineering Consultants	23/10/2024
S400/05	Erosion and Sediment Control Plan	Deboke Engineering Consultants	23/10/2024
Document			Date
Street Tree Management Strategy prepared by Advanced Treescape Consulting			30/10/2024
BASIX Certificate for Unit 1 prepared by Noura Al Hazzouri			29/10/2024
BASIX Certificate for Unit 2 prepared by Noura Al Hazzouri			29/10/2024
NatHERS Certificate for Unit 1 prepared by Noura Al Hazzouri			29/10/2024
NatHERS Certificate for Unit 2 prepared by Noura Al Hazzouri			29/10/2024

Orders:

35. The Court orders:

1. The appeal is upheld.

2. Development Application DA/2023/1082 which seeks consent for the demolition of the existing structures, subdivision of the site into two (2) Torrens title allotments and construction of a two (2) storey semi-detached dwelling house on each lot with associated car parking, landscaping and tree removal at 77 Silver Street, St Peters is determined by the grant of consent, subject to the conditions of consent annexed and marked Annexure A.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 19 December 2024