Ryan v Inner West Council

[2020] NSWLEC 1230

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ryan v Inner West Council [2020] NSWLEC 1230
Hearing dates:	Conciliation conference on 20 May 2020
Date of orders:	27 May 2020
Decision date:	27 May 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The Applicant is granted leave to rely upon the amended plans referred to in Condition 1 of Annexure A. (2) The appeal is upheld. (3) Modification Application No. M/2019/109, to modify Development Consent No. D/2018/205, relating to 10 Montague Street, Balmain, is approved such that Development Consent No. D/2018/205 is modified as set out at Annexure A. (4) As a consequence of (3) above, Development Consent No. D/2018/205 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between 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
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Leichhardt Development Control Plan 2013
Category:	Principal judgment
Parties:	James Ryan (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) S Turner (Solicitor) (Respondent)   Solicitors: Jaku Legal (Applicant) Inner West Council (Respondent)
File Number(s):	2019/247864
Publication restriction:	No

Judgment

1. COMMISSIONER: Mr James Ryan is the owner of 10 Montague Street, Balmain and brings this Class 1 appeal under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) in relation to the deemed refusal by the Inner West Council (the Respondent) of Modification Application No. M/2019/109 (to modify Development Consent No. D/2018/205) to increase the size of the first floor to provide an additional bedroom, to cut back rear hips of the roof to form gable end and to delete conditions of consent, lodged on 11 June 2019.

Conduct of the proceedings

2. On 16 April 2020, and at the request of the parties, the matter was listed for a conciliation conference under s34AA of the Land and Environment Court Act 1979 (LEC Act) to commence on 20 May 2020.

3. Consistent with the COVID-19 Pandemic Arrangements Policy (Pandemic Policy), published on the Court’s website on 23 March 2020, the matter commenced by telephone.

4. Prior to the conciliation conference, the Applicant prepared amended plans that were the subject of notification by the Respondent and in relation to which no public submissions were received.

5. There were also no objector submissions heard at the commencement of proceedings, and 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 conditional development consent to the development application. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 20 May 2020.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

7. 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. There are jurisdictional prerequisites contained in the provisions of the Leichhardt Local Environmental Plan 2013 (LLEP).

8. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [12]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the R1 General Residential zone as identified by the LLEP, which permits development for the purpose of a dwelling house with consent, and wherein the objectives of the zone are:

1   Objectives of 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.

2. The parties are agreed, and I am satisfied, that the application to modify the consent is of minimal environmental impact, is substantially the same development as the development for which the consent was originally granted, and has been notified in accordance with the Leichhardt Development Control Plan 2013 (LDCP) as required by s 4.55 of the EPA Act. In particular, I note the Pruning Specification prepared by ArborSkills relies upon the existing consent for the removal of two of the three branches proposed to be removed, and the proposed amended ridgeline is at a lower height than the development for which the consent was originally granted.

3. The site is within ‘The Valley Heritage Conservation Area’ (C7) (HCA), listed under Schedule 5 of the LLEP, and within close proximity to trees in the road reserve that are identified as heritage items of local significance (I254). Consequently, the provisions of cl 5.10(4) of the LLEP require that the consent authority, or the Court on appeal, consider the effect of the proposed development on the heritage significance of the area.

4. On the basis of the Heritage Impact Assessment, prepared by Weir Phillips Heritage and Planning dated May 2019, and the agreement of the heritage experts arising from the amended plans for which leave is sought, I am satisfied that the proposed development is consistent with the existing character of The Valley ‘Balmain’ Distinctive Neighbourhood area as set out in Part C2.2.2.4 of the LDCP, and its objectives and controls.

5. Furthermore, on the basis of the Pruning Specification that is the subject of agreement between the arboricultural experts, I am satisfied that the heritage listed mature trees in Llewellyn Street will not be adversely affected by the works.

6. The amended development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

9. As the jurisdictional prerequisites to the grant of consent have been addressed, 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. 

10. 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.

11. 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.

12. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Actare:

1. The Applicant is granted leave to rely upon the amended plans referred to in Condition 1 of Annexure A.

2. The appeal is upheld.

3. Modification Application No. M/2019/109, to modify Development Consent No. D/2018/205, relating to 10 Montague Street, Balmain, is approved such that Development Consent No. D/2018/205 is modified as set out at Annexure A.

4. As a consequence of (3) above, Development Consent No. D/2018/205 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (pdf)

Annexure B (pdf)

Plans (pdf)

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Decision last updated: 28 May 2020