Stag Property Pty Ltd v Inner West Council

[2022] NSWLEC 1719

Land and Environment Court

New South Wales

Medium Neutral Citation:

Stag Property Pty Ltd v Inner West Council [2022] NSWLEC 1719

Hearing dates:

Conciliation conference on 15 December 2022

Date of orders:

21 December 2022

Decision date:

21 December 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

See orders at [32]

Catchwords:

DEVELOPMENT APPLICATION: subdivision of land – dwelling house development in R1 General Residential zone – heritage conservation area – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Environmental Planning and Assessment Regulation 2021 ss 27, 37

Inner West Local Environmental Plan 2022

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

Leichhardt Local Environmental Plan 2013 cll 4.1, 4.3A, 4.4, 5.10, 6.1, 6.2, 6.4, 6.8, Sch 5 Pt 2

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

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

Texts Cited:

Australian Standard AS 2021:2015 ‘Acoustics – Aircraft noise intrusion – Building siting and construction’

Category:

Principal judgment

Parties:

Stag Property Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
C Ireland (Respondent)

Solicitors:
Inner West Council (Respondent)

File Number(s):

2022/237293
2022/237326

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is in respect of development proposed on two adjoining parcels of land at Nos 15 and 17 Albion Street, Annandale.

2. To be more precise, the Applicant in these proceedings, Stag Property Pty Ltd (Stag Property), seeks development consent for:

1. Firstly, a 2-storey semi-detached dwelling, and subdivision of the land known as No 15 Albion Street, Annandale, and

2. Secondly, demolition of an existing dwelling, and the erection of a 2-storey dwelling on the land known as No 17 Albion Street, Annandale.

3. To this end, Stag Property lodged two development applications with the Inner west Council (the Respondent):

1. Development application DA/2022/0246, for No 15 Albion Street, was lodged on 10 April 2022, and was notified to surrounding properties between 19 April 2022 and 3 May 2022.

2. Development application DA/2022/0154, for No 17 Albion Street, was lodged on 24 March 2022, and was subsequently notified to surrounding properties between 5 April 2022 and 22 April 2022.

4. On 11 August 2022, Stag Property filed an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) for the deemed refusal of the two development applications at [3].

5. On 25 November 2022, Stag Property amended the development applications. The amended plans and other documents were subject to further joint conferencing between experts that resulted in further amendments.

6. The appeal was listed for mandatory conciliation on 15 December 2022, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). I presided at the conciliation conference.

7. On the basis of the amended plans at [5], and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties.

8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 15 December 2022.

9. 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 on behalf of Stag Property, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

10. 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. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [32].

11. At the outset it is helpful to state that, at the time the development applications were lodged, the Leichhardt Local Environmental Plan 2013 was in force. However, the draft Inner West Local Environmental Plan 2022 (Inner West LEP) was imminent and certain, and it later commenced on 12 August 2022.

12. I have considered the effect of the Inner West LEP, and I note the numerical provisions applicable to the proposal are unchanged.

13. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow.

14. The site is located within the R1 General Residential zone, according to the land use table in the Leichhardt Local Environmental Plan 2013 (LLEP), in which dwelling house development is permitted with consent, where consistent with the objectives for development in the zone, that are:

•  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. The Lot Size Map at cl 4.1(2) of the LLEP requires that the minimum subdivision lot size is 200m². The development, the subject of the development application for No 17 Albion, is for the subdivision of land into two lots of 224.8m² and 221.1m².

16. Clause 4.3A(3)(a)(i) of the LLEP requires a landscaped area of 15% of the site for residential development in the R1 zone, and for site coverage of built form to be no greater than 60% of the site (subcl (3)(b)). The proposed development complies with the requirements of cl 4.3A.

17. Likewise, on the basis of the calculations for development proposed at No 15 Albion Street, on Drawing DA-04, and the calculations for No 17 Albion Street, on Drawing DA-01, I am satisfied that the floor space ratio provisions at cl 4.4 of the LLEP are also complied with.

18. The sites are located within the Annandale Heritage Conservation Area (Annandale HCA), pursuant to Part 2, Schedule 5 of the LLEP, and are also adjacent to two properties listed for their local heritage significance at Nos 1 and 3 The Avenue, Annandale. Accordingly, cl 5.10 of the LLEPP applies.

19. The heritage experts agree that the amended plans resolve the heritage issues in the following manner:

1. The analysis of the existing dwelling on the site now includes a summary of the historical growth of the house over time, better understanding of the extent and condition of remnant fabric, and requirements for bringing the structure to code compliance.

2. The amended scale and siting of the proposal on the site now has a satisfactory relationship to its context.

3. The amended façade design and details, and agreed finishes complement the existing streetscape.

20. I have considered the effect of the proposed development on the Annandale HCA, and on local heritage items at Nos 1 and 3 The Avenue, Annandale. On the basis of the agreement between the heritage experts, I accept there is no adverse impact on either. In arriving at this conclusion, I note the Court was taken to the rear of No 1 The Avenue by the owner of the property and observed the amended plans in the rear yard so as to understand the precise relationship between the properties. I have also been assisted by the Statement of Heritage Impact (SHI) prepared by GBA Heritage, dated November 2022.

21. While the site is identified on the Acid Sulfate Soils Map, at cl 6.1(2) of the LLEP, as Class 5, and is located within 500m of Class 3 land, the proposed development does not rely upon earthworks that would, in my view, impact the water table.

22. Relatedly, while the proposals do not rely upon earthworks beyond ancillary works for stormwater and the like, I have considered the extent of earthworks, stormwater drainage and landscape plans and I regard the matters at cl 6.2(3) of the LLEP to be adequately addressed. On the same basis, I am also satisfied that the impacts of urban stormwater on land are minimised as required by cl 6.4(3) of the LLEP.

23. The proposed development is on land that is near the Kingsford Smith Airport and in an Australian Noise Exposure Forecast System contour of 20 or greater, and involves the erection of a new building. As such, the development is development in an area subject to aircraft noise, and for which an Aircraft Noise Intrusion Assessment (Acoustic Assessment) has been prepared for the development proposed on the land at 15 Albion Street and 17 Albion Street, by Acoustic Logic. The Acoustic Assessment concludes that the internal noise levels of the development will comply with the requirements of Australian Standard AS 2021:2015 ‘Acoustics – Aircraft noise intrusion – Building siting and construction’, subject to certain recommendations. I note agreed conditions of consent provide for the same. Accordingly, I consider the provisions of cl 6.8 of the LLEP to be achieved.

State Environmental Planning Policy No 55 – Remediation of Land

24. Consistent with the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), I have given consideration to the potential contamination of the land.

25. I have considered the history of the site contained in the SHI prepared by GBA Heritage, and I accept that the site has a post-settlement history defined by residential use, as do surrounding properties in the immediate vicinity, and that there is no evidence to suggest contamination on the site, pursuant to s 4.6 of the Resilience and Hazards SEPP.

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

26. I am satisfied that the applications are accompanied by a BASIX certificate. The certificate accompanying development proposed on No 15 Albion Street is Cert No. 1267520M_02 dated 17 November 2022. The certificate accompanying development proposed on No 17 Albion Street is accompanied Cert No. Cert No. 1267517S_03, dated 17 November 2022). The certificates are prepared by Max Brightwell in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and s 27 of the Environment Planning and Assessment Regulation 2021 (EPA Regulation).

Conclusion

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. 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.

29. Inner West Council, as the relevant consent authority, has given its consent, pursuant to s 37 of the EPA Regulation, to Stag Property amending Development Application DA2022/0154 by the lodging of the following plans, prepared by Foley & Grant Architecture, dated 22 November 2022, on the NSW Planning Portal:

• DA-05 Amendment F, North and South Elevations

• DA-06 Amendment F, East and West Elevations

• DA-08 Amendment F, Materials and Finishes

30. Inner West Council, as the relevant consent authority, has also consented to Stag Property amending Development Application DA2022/0246 by the lodging of the following plans, prepared by Foley & Grant Architecture, dated 22 November 2022, on the NSW Planning Portal:

• DA-09 Amendment F, North and South Elevations

• DA-10 Amendment F, East and West Elevations

• DA-14 Amendment F, Materials and Finishes

31. I state here that evidence was provided to the effect that the amended plans were lodged on the NSW Planning Portal on 15 December 2022.

Orders

32. The Court orders that:

In respect of proceedings 2022/237293:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA/2022/0246, for the demolition of an existing dwelling and the construction of two-storey plus attic level dwellings and subdivision into two lots at 15 Albion Street, Annandale, subject to conditions at Annexure A.

In respect of proceedings 2022/237326:

3. The appeal is upheld.

4. Development consent is granted to Development Application DA/2022/0154, for the construction of a new house – two storeys plus attic level at 17 Albion Street, Annandale, subject to conditions at Annexure B.

T Horton

Commissioner of the Court

237293.22 Anexure A 

237326.22 Annexure B 

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Decision last updated: 21 December 2022