Raiss v Inner West Council

[2024] NSWLEC 1719

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Raiss v Inner West Council [2024] NSWLEC 1719

Hearing dates:

Conciliation conference 26 September 2024

Date of orders:

07 November 2024

Decision date:

07 November 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent is granted to Development Application DA/2023/0755 for partial demolition of the existing dwelling, and the construction of a new two storey addition to the rear of the existing dwelling, on Lot 21 DP 1259722, known as 49 Dickson Street, Newtown, subject to conditions of consent at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environmental Court Act 1979, ss 34

Environmental Planning and Regulation 2021, ss 27, 38
Inner West Local Environmental Plan 2022, cll 2.7, 4.3, 4.4, 5.10, 6.3, 6.8, Sch 5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Trevor Raiss (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
D Briggs (Solicitor) (Applicant)
J Marsland (Solicitor) (Respondent)

Solicitors:
DG Briggs and Associates (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s):

2024/283752

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the development consent issued for development application DA/2023/0755. The development application seeks development consent for the partial demolition of the existing dwelling, ground and first floor alterations and additions to the existing dwelling and associated landscaping (DA) at 49 Dickson Street, Newtown, legally described as Lot 21 in DP 1259722 (site). The appeal sought to alter or remove the deferred commencement conditions, amend design related conditions and alter or remove security deposit, tree fencing, and construction fencing related conditions. It is noted that notwithstanding the contended issues, the entire consent is under appeal.

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA/2023/0755 in accordance with the documents listed below (amended DA):

1. Architectural, landscape and stormwater plans:

Drawing name	Drawing No	Plotted
Proposed Site/Context Analysis Plan	DA 01	5 July 2023
Proposed Ground Floor Plan	DA 02	5 July 2023
Proposed First Floor Plan	DA 03	5 July 2023
Proposed Section aa/ bb	DA 04	5 July 2023
Proposed West & East Elevations	DA 05	5 July 2023
Proposed South (Dickson Street) Elevation Proposed North (Holmwood Lane) Elevation	DA 06	5 July 2023
Landscape / Stormwater Plan	LSW 01

2. BASIX Certificate No. A501513 dated 23 August 2023

3. 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 26 September 2024 with subsequent online court communications. I have presided over the conciliation conference.

4. 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 DA and granting development consent to the amended DA subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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.

Jurisdictional Prerequisites

6. 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.

7. I am satisfied that owners consent accompanied the DA, including the adjoining owner at 51 Dickson Street to works related to the party wall between the properties. The DA was lodged to the Respondent on 12 September 2023. The Respondent notified the DA between 4 October 2023 and 18 October 2023. Two submissions objecting to the DA were received.

8. The Court and parties were assisted by viewing some of the concerns raised from an objector’s property.

9. In reaching agreement, the parties have confirmed to the Court that they have considered the concerns raised by objectors. In relation to the request for 1.8m windowsill heights, the parties advise that the DCP requires a sill height of 1.6m for privacy. Section 4.15(3A)(a) of the EPA Act does not allow a consent authority to impose more onerous requirements.

Inner West Local Environmental Plan 2022

10. The site is zoned R2 Low Density Residential under the Inner West Local Environmental Plan 2022 (IWLEP). The proposed development for a dwelling (alterations and additions) is permitted with consent and I have had regard to the objectives of the zone.

11. The parties agree and I accept that the following applicable IWLEP provisions are met:

1. Clause 2.7 requires development consent for demolition, as proposed within the amended DA.

2. Clause 4.3 height of buildings applies a maximum height of 9.5m. I accept that the proposal does not exceed the clause, at a maximum of 7.5m, on the basis of the architectural plan calculations.

3. Clause 4.4 floor space ratio (FSR) applies to the proposed development, with a maximum FSR of 0.6:1. Clause 4.4(2C) allows an increased FSR for dwelling houses, to 1.1:1. The proposal is below the maximum with an FSR of 1:1 as shown on the architectural plans.

4. Clause 5.10 heritage conservation applies to the site pursuant to Sch 5. With consideration of the Heritage Impact Statement prepared by John Pagan dated August 2023 I accept that the provisions have been adequately considered.

5. The parties agree that cl 6.3 stormwater management applies to the site. On the basis of the SEE, landscaping plan/stormwater plan, BASIX Certificate and jurisdictional statement at para 40, I accept that the provisions are met.

6. Assuming that cl 6.8 applies (noting cl 6.8(2)(c)(ii) applies to substantial alterations and additions), I accept that the parties have considered cl 6.8 in relation to aircraft noise as set out in the jurisdictional statement and Statement of Environmental Effects prepared by John Pagan (SEE).

Environmental Planning and Assessment Regulation 2021 and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

12. The parties agree, and I accept, that the DA is accompanied by a BASIX Certificate that meets the provisions of s 27 of the Environmental Planning and Assessment Regulation 2021 and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) apply to the site. The SEE states that the site has a history of residential use for well over one hundred years and there is no known contamination. Accordingly, the parties agree, and I accept, that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

Conclusion

14. 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.

15. 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.

16. 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.

Orders

17. The Court orders:

1. The appeal is upheld.

2. Development Consent is granted to Development Application DA/2023/0755 for partial demolition of the existing dwelling, and the construction of a new two storey addition to the rear of the existing dwelling, on Lot 21 DP 1259722, known as 49 Dickson Street, Newtown, subject to conditions of consent at Annexure A.

S Porter

Commissioner of the Court

Annexure A

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Amendments

15 November 2024 - Coversheet amended to correct the name of the solicitor for the respondent.

Decision last updated: 15 November 2024