TGO Pty Limited v Inner West Council

[2023] NSWLEC 1058

Land and Environment Court

New South Wales

Medium Neutral Citation:

TGO Pty Limited v Inner West Council [2023] NSWLEC 1058

Hearing dates:

Conciliation conference on 5 October and 26 October 2022

Date of orders:

9 February 2023

Decision date:

09 February 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court Orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application described at [24] pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. The quantum of these costs is agreed to be $3,000.00 and is to be paid within 28 days of the date of judgment.

(2) The appeal is upheld.

(3) Development Application DA/2021/1215 for Torrens title subdivision of Lot 2 in Deposited Plan 579226 at 47-49 Chalder St, Marrickville into two separate lots is approved subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – subdivision– conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Marrickville Local Environmental Plan 2011, cll 2.6, 4.4

Inner West Local Environmental Plan 2022, cll 1.8A, 4.4

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

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

TGO Pty Limited (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
G Christmas (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Apex Planning and Environmental Law (Respondent)

File Number(s):

2022/137345

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA 2021/1215 (the DA) by Inner West Council (the Council). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 537 m² parcel of land which is legally described as Lot 2 in DP 579226 and known as 47-49 Chalder Street, Marrickville (the Site). The Site is located on the south-east corner of Chalder Street and Chalder Lane, Marrickville. It has a 15.235m boundary to Chalder Street, a 4.275m splay to the corner of Chalder Street and Chalder Lane, a 26.53m boundary to Chalder Lane, 18.12m eastern boundary and 29.555m southern boundary and a site area of 537m².

3. Development Application DA/2021/1215, as submitted to Council sought approval for Torrens title subdivision from one into three allotments. The DA did not seek consent for any other development of the Land. A separate appeal (Matter No 2022/209637) which relates to the same parcel of land and sought approval for the demolition of all structures on the land was discontinued by the Applicant on 26 October 2022, with the consent of the Respondent.

4. The Site contains a one-two storey building on the southern portion of the site with driveway access to a roller door and separate pedestrian access fronting Chalder Street, and single storey semi-detached dwelling houses central and on the northern portion of the site at the corner of Chalder Street and Chalder Lane. The dwellings have a narrow verandah and pedestrian access to Chalder Street, and a nil setback to Chalder Lane. There is a sewer line that adjoins the rear boundary of the Site.

5. The DA was notified by the Respondent and no submissions were received.

6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 October 2022, and at which I presided. During conciliation, amended plans (the Amended Development Application) were prepared by the Applicant to address Council’s contentions.

7. The proceedings commenced on site and I was shown the surrounding area by the parties. Following the onsite view, the parties continued conciliation discussions at which the parties reached in-principle agreement on the matters in contention.

8. During the conciliation the DA has been amended to reduce the number of resultant lots from three to two, with the two attached dwellings to remain on one lot, and the commercial/light industrial building to remain on the other lot. The amended plans were filed with the Court on 26 October 2022

9. A signed agreement was subsequently prepared in accordance with s 34(10) of the LEC Act and was filed with the Court on 26 October 2022. This decision involved the Court upholding the appeal and granting conditional development consent to the Proposed Development (as amended).

10. 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, noting that the final detail of the works and plans are specified in the agreed conditions of development consent set out in Annexure A.

11. 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’ decision involves the Court exercising power under s 4.16 of the EPA Act.

12. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in [13] – [21] below.

Satisfaction of jurisdiction

Marrickville Local Environmental Plan 2011

13. At the date of lodgement of the DA, Marrickville Local Environmental Plan 2011 (MLEP) applied to the subject site. That instrument was recently repealed by Inner West Local Environmental Plan 2022 (IWLEP), but the operation of MLEP with respect to the DA is saved by cl 1.8A of IWLEP.

14. IWLEP remains a relevant consideration pursuant to s 4.15(1)(a)(ii) of the EPA Act.

15. The subject site is zoned B5 Business Development under both MLEP and IWLEP. I am satisfied from the evidence that the amended DA is consistent with the zone objectives under MLEP, which are as follows:

• To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres.

• To support urban renewal and a pattern of land use and density that reflects the existing and future capacity of the transport network.

16. The proposed development is permissible with development consent pursuant to cl 2.6 of MLEP.

17. There is no minimum lot size control applicable to the Site under either MLEP or IWLEP.

18. After subdivision, the buildings on each of the resultant lots will continue to comply with the floor space ratio control at cl 4.4 of MLEP and IWLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) came into force on 1 March 2022 and applies to the Site.

20. The Parties have considered whether the Land may be contaminated, and whether the land is suitable for its use as required by s 4.6 of the Resilience and Hazards SEPP. As no change of use is proposed, I am satisfied that the land remains suitable for use in its current state, and no report is required pursuant to s 4.6(2).

Marrickville Development Control Plan 2011

21. Marrickville Development Control Plan 2011 (MDCP) applies to the Site. The Parties have considered the relevant provisions of that DCP (in addition to Part 9.47 of the DCP) and from the evidence I am satisfied that there is no matter in the DCP which would warrant refusal of the DA.

Conclusion

22. 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.

23. 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.

Notes

24. The Court notes that:

1. Inner West Council as the relevant consent authority has agreed, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application DA 2021/1215 to rely on:

1. Plan of Proposed Subdivision Layout at Nos 47-49 Chalder St Marrickville Amendment A dated 10/10/22 and prepared by Cibar Surveying Pty Ltd; and

2. Plan Showing Gross Floor Area calculation for Proposed Lot 2 at No 47A Chalder St Marrickville Amendment A dated 10/10/22 and prepared by Cibar Surveying Pty Ltd as set out in condition 1 of the Conditions of Consent contained in Annexure A (“the amended material”).

2. The Applicant has lodged the amended material on the NSW Planning Portal on 26 October 2022.

3. The Applicant has filed the amended material with the Court on 26 October 2022.

Orders

25. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application described at [24] pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. The quantum of these costs is agreed to be $3,000.00 and is to be paid within 28 days of the date of judgment.

2. The appeal is upheld.

3. Development Application DA/2021/1215 for Torrens title subdivision of Lot 2 in Deposited Plan 579226 at 47-49 Chalder St, Marrickville into two separate lots is approved subject to the conditions at Annexure A.

L Sheridan

Acting Commissioner of the Court

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Annexure A

Decision last updated: 09 February 2023