Sargeant v Inner West Council

[2022] NSWLEC 1684

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sargeant v Inner West Council [2022] NSWLEC 1684

Hearing dates:

Conciliation conference held on 2 December 2022

Date of orders:

08 December 2022

Decision date:

08 December 2022

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   The amended written request made pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP), filed on 2 December 2022, which seeks to vary development standard in clause 4.1 – Minimum Lot Size of the LLEP is upheld.

(3)   Development Application No. DA/2021/1209, as amended, for demolition of the existing dwelling and associated structures, construction of two attached two-storey dwellings, and two lot Torrens title subdivision on Lot 29 in Deposited Plan 1558, also known as 3 Lyall Street, Leichhardt NSW 2040 is determined by grant of consent, subject to the conditions set out in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – Torrens title lot subdivision – construction of two dwellings - breach in minimum lot size development standard – cl 4.6 request for variation of standard - conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cl 55

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

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

Leichhardt Local Environmental Plan 2013, cll 2.3, 4.1, 4.6

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Barry Andrew Sargeant (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
C Morten (Solicitor) (Respondent)

Solicitors:
Bartier Perry Lawyers (Applicant)
Sparke Helmore (Respondent

File Number(s):

2022/250279

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against refusal of Development Application DA/2021/1209 by Inner West Council (hereafter the Council), which as amended, seeks demolition of the existing dwelling and associated structures, construction of two attached, two-storey dwellings, and a two lot Torrens title subdivision on Lot 29 in Deposited Plan (DP) 1558, also known as 3 Lyall Street, Leichhardt NSW 2040 (hereafter the site).

Background

2. Development Application DA/2021/1209 (the DA) was lodged with Council on 3 December 2021, and refused by Council on 19 July 2022, following notification (9 submissions were received during the notification period), internal review and consideration by the Inner West Local Planning Panel.

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), without an onsite view at the request of the parties, and by Microsoft Teams.

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

6. Based on the amended DA 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 considered and are resolved, and the issues raised by residents are sufficiently addressed. The decision of the parties is to grant consent to DA/2021/1209, with conditions.

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/2021/1209, subject to conditions in Annexure ‘A’.

Jurisdictional prerequisites

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

1. Leichhardt Local Environmental Plan 2013 (LLEP):

1. Pursuant to cl 2.3 of the LLEP, the proposed residential development is situated over land zoned R1 General Residential. The proposed subdivision and development as described to the Court is permissible with consent. The amended DA sufficiently addresses all the relevant objectives, aims, standards and requirements of the LLEP, however there is a breach of the minimum lot size height development standard by up to 36.5m² (18.25%), pursuant to cl 4.1.

2. The amended DA relies on a cl 4.6 written request, seeking a variation of the non-compliant lot sizes (after subdivision), pursuant to cl 4.6 of the LLEP. The cl 4.6 written request provided to the Court explains that the non-compliance in the minimum lot size standard does not result in a subdivision pattern or development (dwelling design) that is incompatible with the character of the surrounding area or results in adverse amenity, including solar access. The proposed lot sizes will not perceptibly change the presentation to the streetscape of the proposed buildings on each lot or result in adverse bulk/scale impacts to adjoining developments. According to the cl 4.6 written request, the proposed development is consistent with the zone objectives and relevant development standard for cl 4.1.

3. The Court must be satisfied to grant consent to the DA that the cl 4.6 request to vary the standard is appropriately addressed, pursuant to the requirements set out in cl 4.6 of the LLEP. Having reviewed the cl 4.6 written request and evidence before the Court, I am satisfied that the written request for variation of the minimum lot size standard describes sufficient environmental planning grounds to justify the non-compliance, and that strict compliance of the standard would be both unreasonable and unnecessary. The proposed development, as described to the Court, is consistent with the objectives of the zone (R1) and minimum lot size (cl 4.1) standard. The breach in the development standard will not cause undue concern to (existing and future) surrounding residents, the streetscape, and supports those utilising the site. The proposed development is in the public interest. I accept that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance, and that there is no public benefit to maintaining the height standard for the proposed development.

4. It is noted that the amendments to the design of the dwelling made to the DA, resulted in a reduction in the size of buildings on the proposed lots. I am satisfied that the requirements of cl 4.6 of the LLEP have been addressed, and that a variation in the cl 4.1 minimum lot size development standard should be granted.

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

1. A BASIX Certificate (1176457M_-8) issued on 3 November 2022 is relevant to the proposed development, as amended, and is identified in the conditions of consent and supports the amended DA.

3. Leichhardt Development Control Plan 2013 (LDCP):

1. The relevant requirements of the LDCP are generally complied with, based on the amended plans, supporting documents to the DA and the conditions of consent. The original application was publicly notified in accordance with the LDCP, and the parties advise the submissions received have been considered and assessed in Council’s merit assessment.

Grant of consent

9. Based on the amended plans and supporting documents to the DA, 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.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that application DA/2021/1209 can be granted consent, as it satisfies the relevant requirements of s 4.15 of the EPA Act.

12. 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.

13. The Court notes that:

1. Inner West Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application DA/2021/1209.

2. The amended application documents were lodged on the NSW Planning Portal on 11 November 2022 and filed the amended application with the Court the same day.

14. The Court orders that:

1. The appeal is upheld.

2. The amended written request made pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013 (LLEP), filed on 2 December 2022, which seeks to vary development standard in clause 4.1 – Minimum Lot Size of the LLEP is upheld.

3. Development Application No. DA/2021/1209, as amended, for demolition of the existing dwelling and associated structures, construction of two attached two-storey dwellings, and two lot Torrens title subdivision on Lot 29 in Deposited Plan 1558, also known as 3 Lyall Street, Leichhardt NSW 2040 is determined by grant of consent, subject to the conditions set out in Annexure ‘A’.

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (269644, pdf)

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Decision last updated: 08 December 2022