The Quarry Midco Pty Ltd v Inner West Council

[2023] NSWLEC 1189

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Quarry Midco Pty Ltd v Inner West Council [2023] NSWLEC 1189

Hearing dates:

Conciliation conference on 15 and 16 March 2023

Date of orders:

26 April 2023

Decision date:

26 April 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA/2022/0082, for demolition of part of an existing garage and other site improvements and construction of a part two/part three storey dwelling house, with associated parking, at 24a Quarry Street, Tempe (Lot 16, Section 14 in DP 60083), is approved subject to the conditions of consent as set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

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

Environment Planning and Assessment Regulation 2000, cl 55
Inner West Local Environmental Plan 2022, cl 1.8A

Land and Environment Court Act 1979, s 34

Marrickville Local Environmental Plan 2011, cll 2.3, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.5, Sch 5

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

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

Texts Cited:

Inner West Council, Community Engagement Framework, 2019

Marrickville Development Control Plan 2011

Standards Australia, AS 2021—2000 “Acoustics—Aircraft noise intrusion— Building siting and construction”, 2000

Category:

Principal judgment

Parties:

The Quarry Midco Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
C Leggat, SC (Applicant)
S Hill (Solicitor) (Respondent)

Solicitors:
Unsworth Legal (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/295190

Publication restriction:

No

Judgment

1. COMMISSIONER: The Quarry Midco Pty Ltd (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of Development Application No. DA/2022/0082, made with owner’s consent, and seeking consent for demolition of part of an existing garage and other site improvements and construction of a part two/part three storey dwelling house, with associated parking (the proposed Development), at 24a Quarry Street, Tempe (Lot 16, Section 14 in DP 60083), (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s Development Application was notified between 15 and 29 March 2022, under the provisions of Inner West Council’s Community Engagement Framework 2019, and six submissions being received in response to that notification.

4. On 15 and 16 March 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions. A site inspection had been undertaken prior to the commencement of the conciliation conference and three objector submissions were received on-site during the inspection.

5. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

6. 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.

7. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this:

1. the Applicant has provided a Preliminary Site Investigation (Contamination) prepared by EI Australia and dated 8 December 2022; and

2. I am satisfied that the Subject Site is not contaminated and that it is suitable for its intended use under the Proposed Development; and

3. I am further satisfied that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal.

2. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP Basix):

1. the Applicant has provided a BASIX certificate 1380310S dated 16 March 2023 in relation to the Proposed Development; and

2. I am satisfied that the relevant provisions of SEPP Basix have been satisfied in relation to the Proposed Development;

3. in relation to the provisions of Marrickville Local Environmental Plan 2011 (MLEP):

1. the provisions of MLEP apply to the assessment and determination of the Applicant’s development application in this Appeal as a consequence of the savings provisions in cl 1.8A of Inner West Local Environmental Plan 2022;

2. the Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of MLEP and a dwelling house, as proposed by the Applicant, is permissible with consent in this zone;

3. the Parties have advised, and I am satisfied, that the objectives of the R2 zone have been considered in relation to the assessment and determination of the Applicant’s development application;

4. the Proposed Development is compliant with the 9.5m height of buildings development standard applicable to development on the Subject Site under cl 4.3 of MLEP;

5. development on the Subject Site is subject to a floor space ratio (FSR) development standard of 0.7:1 under the provisions of cl 4.4 of MLEP and the Proposed Development has a FSR of 0.67:1 in compliance with this standard;

6. the Subject Site is located in the vicinity of heritage items listed in Sch 5 of MLEP, and the Parties have confirmed, and I am satisfied, that:

1. pursuant to the provisions of cl 5.10 of MLEP, consideration has been given to the potential impacts of the Proposed Development on the significance of these heritage items; and

2. no further consideration of heritage matters is required, and the terms of cl 5.10 of MLEP are satisfied;

7. in relation to the provisions of cl 5.21 of MLEP, in relation to flood planning, the Subject Site is not mapped as being located in a flood planning area;

8. in relation to the provisions of cl 6.1 of MLEP concerning acid sulfate soils, the Applicant has provided a geotechnical investigation and acid sulfate soil assessment dated 22 July 2022, which confirms that:

1. the Proposed Development will not intercept and acid sulfate soils will not result in the lowering of groundwater; and

2. there is no requirement for the preparation of an acid sulfate soils management plan;

9. in relation to the provisions of cl 6.2 of MLEP concerning earthworks, the Parties have confirmed, and I am satisfied, that the Applicant has provided sufficient information to satisfy the provisions of cl 6.2(3) of MLEP;

10. in relation to the provisions of cl 6.4 of MLEP concerning biodiversity, the Subject Site is identified as land to which this clause applies, and the Parties have confirmed, and I am satisfied, that:

1. the Applicant’s proposed earthworks, including excavation, is not likely to impact on any native fauna and flora; and

2. the provisions of cl 6.4 of MLEP are satisfied;

11. in relation to the provisions of cl 6.5 of MLEP concerning development in areas affected by aircraft noise, the Subject Site is located within the Australian Noise Exposure Forecast (ANEF) 20-25 contour, and so the provisions of cl 6.5 of MLEP apply to the Proposed Development, and the Parties have confirmed, and I am satisfied, that:

1. the matters in subcll 6.5(3)(a) and (b) have been considered;

2. the Proposed Development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021—2000 concerning “Acoustics—Aircraft noise intrusion— Building siting and construction”; and

3. the Parties agreed conditions of consent include conditions requiring compliance with the provisions of AS 2021—2000 concerning “Acoustics—Aircraft noise intrusion— Building siting and construction”;

4. in relation to the provisions of Marrickville Development Control Plan 2013 (MDCP), the Parties have considered the provisions of MDCP, and they agree, and I am satisfied, that the Proposed Development is compliant with the provisions of the relevant parts of MDCP or if not, it achieves the objectives of the controls in MDCP;

5. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act.

8. Having considered the advice of the Parties, provided above at [7], I agree that:

1. regard has been had to the objectives of the Subject Site’s R2 zoning in determining the Applicant’s development application;

2. the Applicant’s development application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act, including in relation to the submissions received in response to notification, which have been considered by the Parties in reaching agreement; and

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been satisfied;

4. approval of the Proposed Development is in the public interest.

9. Further, 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 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

12. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed, pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application No. DA/2020/0082 in accordance with the amended plans and documents lodged on the NSW Planning Portal and filed with the Court on 16 March 2022 as described below:

1. Architectural Plans prepared by Furfaro Architects:

Revision and Issue No.	Plan Name	Issue Date	Prepared by
AR100 Revision 1	Cover Page	09/03/2023	Furfaro Architects
AR100 Revision 1	Overall Site Plan	09/03/2023	Furfaro Architects
AR101 Revision 1	Demolition Plan	09/03/2023	Furfaro Architects
AR200 Revision 1	Site Plan	09/03/2023	Furfaro Architects
AR201 Revision 1	Excavation Plan	09/03/2023	Furfaro Architects
AR202 Revision 1	Lower Ground Floor Plan	09/03/2023	Furfaro Architects
AR203 Revision 1	Upper Ground Floor Plan	09/03/2023	Furfaro Architects
AR204 Revision 1	First Floor Plan	09/03/2023	Furfaro Architects
AR205 Revision 1	Roof Plan	09/03/2023	Furfaro Architects
AR300 Revision 1	Elevations 1/2	09/03/2023	Furfaro Architects
AR301 Revision 1	Elevations 2/2	09/03/2023	Furfaro Architects
AR302 Revision 1	Streetscape Elevation	09/03/2023	Furfaro Architects
AR401 Revision 1	Sections	09/03/2023	Furfaro Architects
AR402 Revision 1	Sections	09/03/2023	Furfaro Architects
AR403 Revision 1	Sections	09/03/2023	Furfaro Architects
AR404 Revision 1	Sections	09/03/2023	Furfaro Architects
AR405, Revision 1	Window Schedule	09/03/2023	Furfaro Architects
AR500 – AR520, Revision 1	Shadow Diagrams	09/03/2023	Furfaro Architects
AR600, Revision 1	Existing Sandstone Wall	09/03/2023	Furfaro Architects
AR521   –   AR546, Revision 1	Elevation   Shadow Diagrams	09/03/2023	Furfaro Architects

2. Landscape plan, Rev A Sht-1 and Sht-2 prepared by Stride Landscape Design, dated 14 March 2023.

3. BASIX Certificate No. 1380310S, prepared by Integreco Consulting, dated 16 March 2023.

4. NatHERS Certificate dated 16 March 2023.

5. Engineering plans S0 – S4, Revision C, prepared by Prime Engineering Consultants, dated 15 March 2023.

Orders

13. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA/2022/0082, for demolition of part of an existing garage and other site improvements and construction of a part two/part three storey dwelling house, with associated parking, at 24a Quarry Street, Tempe (Lot 16, Section 14 in DP 60083), is approved subject to the conditions of consent as set out in Annexure A.

M Chilcott

Commissioner of the Court

295190.22 Annexure A (826550, pdf)

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Decision last updated: 26 April 2023