Poynting v Inner West Council

[2023] NSWLEC 1073

Land and Environment Court

New South Wales

Medium Neutral Citation:

Poynting v Inner West Council [2023] NSWLEC 1073

Hearing dates:

Conciliation conference held on 13-14 February 2023

Date of orders:

17 February 2023

Decision date:

17 February 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   Leave is granted to the applicant to rely on the amended plans at condition 1 of the conditions of consent, described in Annexure A.

(2)   The appeal is upheld.

(3)   Development Application DA/2022/0559, as amended, for alterations and additions to the existing residential building for a single storey rear extension and one (1) new associated hardstand car space on Lot A Deposited Plan 334133 and Lot 7, Section 6 in Deposited Plan 700, also known as 156A Old Canterbury Road, Summer Hill is determined by grant of consent, subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION –alterations and additions to existing attached dwellings – parking space in front setback with landscaping - conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

Ashfield Local Environmental Plan 2013, cl 2.3

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Land and Environment Court Act 1979, ss 34, 34AA

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

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Texts Cited:

Comprehensive Inner West Development Control Plan 2016

Category:

Principal judgment

Parties:

Michael Poynting (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
A Kleiss (Solicitor) (Respondent)

Solicitors:
Storey & Gough (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/284665

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application DA/2022/0559 by the Inner West Council (hereafter the Council), which as amended, seeks alterations and additions to the existing attached dwellings, a car space and landscaping on Lot A Deposited Plan 334133 and Lot 7, Section 6 in Deposited Plan 700, also known as 156A Old Canterbury Road, Summer Hill (hereafter the site).

Background

2. Development Application DA/2022/0559 (the application) was lodged with Council on 20 July 2022, and refused by Council on 14 September 2022, following notification (with one written submission received during the notification period), internal review and referral to Transport for NSW (TfNSW). TfNSW provided advice on 31 August 2022 and raised no objection to the application.

3. The applicant appealed against the refusal, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing with an onsite view at the request of the parties, and then held in person.

5. The Council approved the applicant to amend the plans and documents that support and amend the application, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended application and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions of Council have been resolved, and that the issues raised by residents have been considered.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to s 4.15, to grant consent to Development Application DA/2022/0559, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the application. The following jurisdictional requirements have been specifically considered and are satisfied:

1. Ashfield Local Environmental Plan 2013 (ALEP):

1. Pursuant to cl 2.3 of the ALEP, the proposed development is situated over land zoned R2 Low Density Residential. The proposed development, as described to the Court, is permissible with consent in this zone. The amended application sufficiently addresses all the relevant objectives, aims, standards and provisions of the ALEP.

2. EPA Reg:

1. The applicant has satisfied the Court with regards to consent of landowner relevant to the application, pursuant to cl 49.

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

1. A BASIX Certificates (A461784 and A461785) issued on 2 June 2022 are relevant to the proposed development, as amended, and are identified in the conditions of consent.

4. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure):

1. The site fronts to Old Canterbury Road, a Classified Road, and requires consideration pursuant to s 2.119 of the SEPP Infrastructure. TfNSW have provided advice with objection to the application and their general terms of approval are described in Annexure A.

5. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site has historically been used for residential purposes, the existing residential use prevails and there are no records of contamination relating to the site. The Court is satisfied the requirements of Ch 4 of SEPP Resilience are addressed.

6. Comprehensive Inner West Development Control Plan 2016 (DCP):

1. The relevant requirements of the DCP are generally complied with, based on the amended plans, supporting documents to the application and the conditions of consent. The original application was publicly notified in accordance with the DCP, and the Court is satisfied that the submissions received have been considered in Council’s merit assessment of the application.

Grant of consent

9. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

10. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submissions and relevant streetscape character.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application DA/2022/0559 can be granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

12. As the parties' agreement 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.

13. The Court notes that:

1. The City of Canada Bay Council, as the relevant consent authority, has approved, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA/2022/0559.

14. The Court orders that:

1. Leave is granted to the applicant to rely on the amended plans at condition 1 of the conditions of consent, described in Annexure A.

2. The appeal is upheld.

3. Development Application DA/2022/0559, as amended, for alterations and additions to the existing residential building for a single storey rear extension and one (1) new associated hardstand car space on Lot A Deposited Plan 334133 and Lot 7, Section 6 in Deposited Plan 700, also known as 156A Old Canterbury Road, Summer Hill is determined by grant of consent, subject to the conditions set out in Annexure A.

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 17 February 2023