Precision Planning Pty Ltd v Inner West Council

[2023] NSWLEC 1530

Land and Environment Court

New South Wales

Medium Neutral Citation:

Precision Planning Pty Ltd v Inner West Council [2023] NSWLEC 1530

Hearing dates:

Conciliation Conference on 1 September 2023

Date of orders:

14 September 2023

Decision date:

14 September 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The written request pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP) seeking a variation to the landscaped areas for residential accommodated in Zone R1 development standard in cl 4.3A(3)(b) of the LLEP, prepared by Bruce Threlfo filed 4 September 2023, is upheld.

(2) The appeal is upheld.

(3) Development Application No. DA/2022/0253, as amended, for ground and first floor alterations and additions to the existing dwelling, new garage at the rear and associated works and removal of encroachments over 5 and 9 National Street, Rozelle at 7 National Street, Rozelle, is determined by the grant of development consent subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – heritage – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Inner West Local Environmental Plan 2022, cl 1.8A

Leichhardt Local Environmental Plan 2013, cll 2.3, 4.3A, 4.4, 4.6, 5.10, 6.4, Sch 5

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, s 4.6

Category:

Principal judgment

Parties:

Precision Planning Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Driscoll (Solicitor) (Applicant)
S Shneider (Solicitor) (Respondent)

Solicitors:
BCP Lawyers and Consultants (Applicant)
Houston Dearn O’Connor (Respondent)

File Number(s):

2023/90510

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 deferred commencement development consent Development Application No. DA/2022/0253 for ground and first floor alterations and additions to the existing dwelling, new garage at the rear and associated works and removal of encroachments over 5 and 9 National Street, Rozelle at 7 National Street, Rozelle, legally described as Lot 16 in DP2319 (the subject site).

2. In accordance with s 8.7 of the EPA Act, I note that the entire proposed development is the subject of the appeal and that the Class 1 Appeal documentation has narrowed the issues in dispute to nominated deferred and operative conditions of consent.

3. Following a notice of motion to reduce the number of proposed conditions for deletion, the Applicant’s Statement of Facts and Contentions identified the following conditions as the issues in dispute:

• Deletion of deferred condition 1 which reduced the size of the rear garage from a double garage to a single garage with landscaping and fencing;

• Deletion of deferred condition 2 in relation to amendments requiring increased rear setbacks at first floor, potential reconfiguration of the ground floor within the approved floor plan to provide a third bedroom, reconfiguration of the first floor balcony and changes to the roof;

• Deletion of operative condition 2 requiring the roof pitch over the balcony be increased to 15 degrees and lowering of the awning; and

• Deletion of operative condition 22 requiring a 150mm step between the dwelling and external area.

4. Amended plans were filed with the Court on 4 September 2023 (amended development application) cited at [28]. The amendments can be summarised as follows:

• Bedroom 3 on the first floor has been retained

• Changes to incorporate a wider single garage

• Changes to the roof form

• Removal of a 150mm step between the dwelling and external area

• Associated internal and external changes

5. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 September 2023. I have presided over the conciliation conference.

6. 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 for the amended development application and granting development consent to the amended development application subject to conditions.

7. Accompanying the filed s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

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, subject to conditions of consent.

Jurisdictional Prerequisites

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 explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

11. I am satisfied that owners consent accompanied the amended development application for the subject site and the sites the subject of the proposed encroachment removal (5 National Street and 9 National Street, Rozelle).

12. The Respondent notified the development application between 19 April 2022 and 3 May 2022. The development application received no submissions.

Leichhardt Local Environmental Plan 2013

13. The development application was lodged to the Respondent prior to the commencement of the Inner West Local Environmental Plan 2022. Pursuant to the savings provision at cl 1.8A, Leichhardt Local Environmental Plan 2013 (LLEP) applies to the amended application.

14. The subject site is zoned R1 General Residential pursuant to the LLEP, where the proposed development is permissible with consent. In accordance with cl 2.3, I have had regard to the objectives of the zone:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To improve opportunities to work from home.

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

• To provide landscaped areas for the use and enjoyment of existing and future residents.

• To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

• To protect and enhance the amenity of existing and future residents and the neighbourhood.

15. Clause 4.3A Landscaped areas for residential accommodation in Zone R1 applies to the proposed development. The parties agree and I am satisfied on the basis of the amended cl 4.6 submission authored by Bruce Threlfo filed 4 September 2023 (written request) that the provisions of 4.3A(3)(a)(i) in relation to minimum landscaped area is met by the amended application.

16. With respect to cl 4.3A(3)(b), the proposed site coverage exceeds the maximum 60% site area allowable under the development standard. The relevant part of the development standard is set out below:

4.3A Landscaped areas for residential accommodation in Zone R1

(1) The objectives of this clause are as follows—

(a) to provide landscaped areas that are suitable for substantial tree planting and for the use and enjoyment of residents,

(b) to maintain and encourage a landscaped corridor between adjoining properties,

(c) to ensure that development promotes the desired future character of the neighbourhood,

(d) to encourage ecologically sustainable development by maximising the retention and absorption of surface drainage water on site and by minimising obstruction to the underground flow of water,

(e) to control site density,

(f) to limit building footprints to ensure that adequate provision is made for landscaped areas and private open space.

(2) This clause applies to development for the purpose of residential accommodation on land in Zone R1 General Residential.

(3) Development consent must not be granted to development to which this clause applies unless—

(a) the development includes landscaped area that comprises at least—

(i) where the lot size is equal to or less than 235 square metres—15% of the site area, or

(ii) where the lot size is greater than 235 square metres—20% of the site area, and

(b) the site coverage does not exceed 60% of the site area.

…

17. Clause 4.3A(3)(b) states that the site coverage must not exceed 60% of the site area. The amended application exceeds the site coverage, proposing 64.2% resulting in a contravention of 4.2% or 8.7m². The application is supported by a written request. The parties agree and I am satisfied that the written request justifies the contravention and that the proposed development is in the public interest for the following reasons:

• The written request demonstrates that compliance with the landscaped site area development standard is unreasonable or unnecessary in the circumstances of this case, as the site area contravention still achieves the relevant objectives for the standard through:

° Provision of the required amount of private open space above the amount required;

° Maintaining the heritage character of the area;

° Providing adequate landscaping stipulated by the development standard, and;

° Compliance with the floor space ratio (FSR) development standard to effectively control site density.

• The written request demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard, as the contravention is a result of preserving the single storey heritage character presentation to the street (known as the Valley Heritage Conservation Area), which has consequently increased site coverage to the rear.

• I consider that the contravention from the proposed development will be in the public interest as it is consistent with the objectives of the landscaped areas development standard and is also consistent with the zone objectives; and

• In accordance with 4.6(5), I have considered the matters and am satisfied that the contravention will not infringe on those matters.

18. Accordingly, I am satisfied that the written request and proposed contravention to the cl 4.3A(3)(b) landscaped areas for residential accommodation in Zone R1 regarding site area is adequately justified in accordance with the matters set out in cl 4.6 of the LLEP.

19. As such, the Applicant’s written request, pursuant to cl 4.6 of the LLEP seeking to vary the development standard for landscaped areas as set out at cl 4.3A(3)(b) of the LLEP, is upheld.

20. Clause 4.4 Floor Space Ratio of the LLEP applies to the subject site, which permits a maximum FSR of 0.8:1. The parties agree and I accept that the proposal is below the maximum permitted FSR on the basis of the calculations within the written request, at 0.74:1.

21. The subject site is located within the local Valley Heritage Conservation Area and is identified as a contributory item but is not a heritage item in accordance with cl 5.10 Heritage conservation and Sch 5 of the LLEP. On the basis of the Heritage Impact Assessment report authored by Easton Planning Consultants dated July 2021, I accept that the amended development application provides an appropriate design response to the Valley Heritage Conservation Area and retains the important heritage elements and their presentation to the streetscape.

22. Clause 6.4 Stormwater management applies to the site. The parties agree and I am satisfied that the provisions of cl 6.4 have been met on the basis of the Stormwater Management plan prepared by SWV Consulting dated 28 August 2021 and the conditions of consent at Annexure A.

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

23. The parties agree and I accept that the amended development application is accompanied by an amended BASIX Certificate that satisfies the provisions of SEPP BASIX.

State Environmental Planning Policy (Resilience and Hazards) 2021

24. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) apply to the site. The amended development application does not change the previous use of the site as a residential property and has a long history of residential use. I am satisfied with consideration of the Statement of Environmental Effects prepared by Shire Planning Services dated January 2022 and the Heritage Impact Assessment report authored by Easton Planning Consultants dated July 2021, that the provisions of s 4.6 of SEPP Resilience have been adequately addressed.

Conclusion

25. 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.

26. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

27. 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.

28. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA/2022/0253 in accordance with the plans and documents listed below:

Plan, Revision	Plan Name	Date Issued	Prepared by
and Issue No.
Drawing No.	Cover Page - Finishes and Glazing Schedule	24 August 2023	Precision Planning
#255-1 Rev B
Drawing No.	Site and Site Analysis Plan	24/8/23	Precision Planning
#255-2 Rev B
Drawing No.	Existing Floor Plan	24/8/23	Precision Planning
#255-3 Rev B
Drawing No.	Proposed Ground Floor Plan	24/8/23	Precision Planning
#255-4 Rev B
Drawing No.	Proposed First Floor Plan	24/8/23	Precision Planning
#255-5 Rev B
Drawing No.	North West, South East Elevations	24/8/23	Precision Planning
#255-6 Rev B
Drawing No.	North East, South West Elevations	24/8/23	Precision Planning
#255-7 Rev B
Drawing No.	Sections 1-1, 2-2	24/8/23	Precision Planning
#255-8 Rev B
Drawing No.	Sections 3-3, 4-4, 5-5, 6-	24/8/23	Precision Planning
#255-9 Rev B	6
Drawing No.	Construction, Waste and Demolition Plans	24/8/23	Precision Planning
#255-11 Rev B
Drawing No.	Glazing Schedule Detailed	24/8/23	Precision Planning
#255-12 Rev B
A419603_08	BASIX Certificate	23 August 2023	Precision Planning
		2023
Drawing No.	Stormwater Management	28-08-21	SWV Consulting
783-1 Rev. 1	and Driveway
Longitudinal Sections
Site Waste Minimisation and Management Plan		10 Jan 2022	Daniel Sutton

29. The Court notes the Applicant has filed a copy of the amended plans and documents on 4 September 2023.

Orders:

30. The Court orders:

1. The written request pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP) seeking a variation to the landscaped areas for residential accommodated in Zone R1 development standard in cl 4.3A(3)(b) of the LLEP, prepared by Bruce Threlfo filed 4 September 2023, is upheld.

2. The appeal is upheld.

3. Development Application No. DA/2022/0253, as amended, for ground and first floor alterations and additions to the existing dwelling, new garage at the rear and associated works and removal of encroachments over 5 and 9 National Street, Rozelle at 7 National Street, Rozelle, is determined by the grant of development consent subject to the conditions of consent at Annexure A.

……………………….

S Porter

Commissioner of the Court

Annexure A (280614, pdf)

**********

Decision last updated: 14 September 2023