Tizzone v Inner West Council

[2024] NSWLEC 1549

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tizzone v Inner West Council [2024] NSWLEC 1549

Hearing dates:

Conciliation conference 26, 27 August 2024

Date of orders:

06 September 2024

Decision date:

06 September 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application number DA/2022/1110, as amended, for alterations and additions to existing dwelling including new first floor, new garage with studio over, on land identified at Lot 1 in DP 121802, known as 175 Young Street, Annandale NSW 2038, is determined by the grant of development consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – Alterations and additions to an existing dwelling – conciliation conference – amended plans – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.14, 8.18

Land and Environment Court Act 1979, ss 34, 34AA, 39

Inner West Local Environmental Plan 2022, cll 2.3, 2.7, 4.4, 4.3C, 4.6, 5.10, 5.21, 6.1, 6.2, 6.3, 6.8

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, ss 2.2, 6.6

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

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Guiseppe Tizzone (First Applicant)
Simone Marie Forte (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Griffiths, solicitor (Applicants)
R Dunstan, solicitor (Respondent)

Solicitors:
Bartier Perry Solicitors (Applicants)
Inner West Council (Respondent)

File Number(s):

2024/58673

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 against the actual refusal of development application DA/2022/1110. The development application seeks consent for alterations and additions to existing dwelling including new first floor, new garage with studio over. The works are proposed on land identified at Lot 1 in DP 121802, known as 175 Young Street, Annandale NSW 2038.

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on the 26 and 27 August 2024. I presided over the conciliation conference. At the conciliation conference agreement was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. his agreed 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 27 August 2024.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that:

1. The Application was made with the written consent of the registered proprietors of the Site, being the Applicants to the proceedings.

2. The development application was notified by the Respondent in accordance with the Inner West Community Engagement Framework from 18 January to 1 February 2022. One submission was received by the Council which raised concerns about the bulk and scale of the two storey rear addition, impact of the development on outlook to the sky and overshadowing. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by the submission. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept that s 4.6 of SEPP RH is satisfied.

4. Section 2.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies as the development application seeks consent for the removal of trees in non-rural areas. The Court was assisted by a joint report from the parties arboriculture experts which recommended amendments to the development. Those amendments have been made. Having reviewed the documents comprising the development application and the joint report, I am satisfied that the proposed development is consistent with Ch 2 of the SEPP BC.

5. Further, s 6.6 of the SEPP BC sets out matters a consent authority must consider in determining whether to grant development consent, including whether the development will have a neutral or beneficial effect on the quality of water entering a waterway. The annexed conditions of consent include appropriate conditions requiring water quality management (see Conditions 21 and 27). The parties agree, and I accept, that the requirements of sections 2.2 and 6.6 of the SEPP BC are satisfied.

6. The proposed development is ‘BASIX development’ as defined by the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) and a BASIX certificate is required for the development application pursuant to s 27 of the EPA Regulation. An updated BASIX certificate has been provided as part of the Amended Proposal satisfying these requirements.

7. The Inner West Local Environmental Plan 2022 (LEP 2022) is the relevant local environmental planning instrument that applies to the site. Pursuant to LEP 2022, the site is zoned R1 General Residential. Development for the purposes of dwelling houses is permitted with consent in the zone. As required by cl 2.3(2) of LEP 2022, in determining the development application I have considered the objectives of the R1 General Residential zone.

8. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2022.

9. The development application complies cl 4.4: Floor space ratio in LEP 2022. The applicable standard being 0.8:1.

10. Pursuant to cl 4.3C “Landscaped areas for residential accommodation in the R1 Zone” a minimum of 15% of the site is required to be Landscaped Area; and a maximum 60% of the total area of the Site to be Site Coverage. The development application complies with the development standard for landscaped area, however, relies on a variation to the development standard for site coverage, proposing 61.67% of the site area. The Applicant relies on a written request prepared by Chapman Planning Pty Ltd, in support of the variation. The written request addresses the matters set out at cl 4.6(3) of LEP 2022, including having regard to the tests set out in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118.

1. Pursuant to cl 4.6(3) of LEP 2022, the Court, in exercising the functions of the consent authority, must be satisfied of both matters in cl 4.6(3) being:

1. that compliance with the development standard in cl 4.3C of LEP 2022 is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of LEP 2012); and,

2. that there are sufficient environmental planning grounds to justify the contravention of the development standard in cl 4.3C of LEP 2012 (subcl 4.6(3)(b) of LEP 2012).

2. Only if the requirements in cl 4.6(3) are met, will the power in cl 4.6(2) to grant consent to development that contravenes the development standard, be enlivened: RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130 per Preston CJ at [23].

3. I am satisfied, for the reasons outlined in the written request, that it is unreasonable and unnecessary to comply with the site coverage development standard in the circumstances of this case as the objectives of the standard are met, notwithstanding the non-compliance. On the evidence the site provides sufficient landscaped areas for planting and enjoyment by residents, to control site density and to be compatible with the desired character of the neighbourhood.

4. Further, I am satisfied that the grounds advanced in the written request are sufficient environmental planning grounds to justify contravening the development standard.

5. The parties agree, and I accept, that the proposed development is in the public interest because it is consistent with the objectives of the site area standard and the objectives for development within the R1 General Residential zone for the reasons detailed in the written request.

6. I accept the agreed submission of the parties that the Court has the power to determine the application without the concurrent of the Planning Secretary pursuant to s 8.14(3) of the EPA Act and s 39(6) of the LEC Act.

7. Having regard to all of the above matters I am satisfied that I should uphold the cl 4.6 variation request in relation to the site coverage standard in LEP 2022.

11. The subject site is located within the Annadale Heritage Conservation Area (HCA) and accordingly cl 5.10 of LEP 2022 applies. The development application includes a Heritage Impact Assessment prepared by Heritage 21. Further, the heritage impacts of the development were the subject of expert evidence. On the basis of these documents, I have considered the effect of the proposed development on the heritage significance of the HCA.

12. Clause 5.21 Flood Planning applies to the site as it is mapped on the Respondent’s flood prone land map. The development application is accompanied by stormwater management plans which are acceptable to the Respondent. In determining the development application, I have considered the matters at cl 5.21(3) of LEP 2022. Given the limited affectation and the form of the proposed development, I am satisfied that the development:

1. is compatible with the flood function and behaviour on the land, and

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

4. incorporates appropriate measures to manage risk to life in the event of a flood, and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

13. Pursuant to cl 6.1 'Acid Sulfate Soils', the site is mapped as 'Class 5' on the Acid Sulfate Soils map. I am satisfied that works are proposed below 5m Australian Height Datum (AHD) and the water table is not likely to be lowered below 1m AHD.

14. Clause 6.2(3) 'Earthworks' applies to the site. The development application proposes minimal earthworks in association with construction of footings. Having reviewed the documents which form part of the development application and the matters listed at cl 6.2(3) of LEP 2022, I can be satisfied that none warrant the refusal of the development application.

15. Clause 6.3 of LEP 2022 concerns stormwater, and applies to the proposed development. Based on the architectural plans and the revised Stormwater Management Plans, I accept the agreement of the parties that I can be satisfied of the matters in cl 6.3(3), namely that the development:

1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

2. includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

3. avoids a significant adverse impact of stormwater runoff on adjoining properties, native bushland and receiving waters, or if an impact cannot be reasonably avoided, minimises and mitigates the impact.

16. Clause 6.8 ‘Development in areas subject to aircraft noise’ applies to the site, firstly as it is located within the 20-25 Australia Noise Exposure Forecast (ANEF) contours and secondly as it proposes the erection of an alterations and additions. The annexed conditions require the resulting development to comply with the relevant provisions of the Australian Standard AS 2021:2015 Acoustics – Aircraft noise intrusion – Building siting and construction. Having considered the matters in cl 6.8(3) of LEP 2022, I am satisfied that none warrant the refusal of the development application.

17. Leichhardt Development Control Plan 2013 (DCP 2013) applies to the site. The Statement of Environmental Impacts filed with the application details the compliance of the proposed development with DCP 2013. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

5. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

6. The Court notes that:

1. The Respondent has agreed to the Applicant amending the Application Class 1, pursuant to section 38(1) and (4) of the EPA Regulation, to rely on the following plans and documents:

Architectural Plans
Drawing No. and Revision	Plan Name	Date	Prepared by
DA1.00, Rev. H	Cover Sheet / Site Plan	27/08/2024	GraphioAM
DA1.01, Rev H	Site Analysis and Construction Management Plan	27/08/2024	GraphioAM
DA2.00, Rev H	Calculations Plan	27/08/2024	GraphioAM
DA2.01, Rev H	Calculations Plan Cont.	27/08/2024	GraphioAM
DA2.02, Rev. H	Landscape Plan	27/08/2024	GraphioAM
DA3.00, Rev. H	Ground Floor Plan	27/08/2024	GraphioAM
DA3.01, Rev H	Ground Floor Demolition Plan	27/08/2024	GraphioAM
DA4.00, Rev. H	First Floor Plan	27/08/2024	GraphioAM
DA4.01, Rev. H	First Floor Demolition Plan	27/08/2024	GraphioAM
DA5.00, Rev. H	Roof Plan	27/08/2024	GraphioAM
DA6.00, Rev. H	Sections	27/08/2024	GraphioAM
DA7.00, Rev. H	Elevations	27/08/2024	GraphioAM
DA7.01, Rev. H	Elevations Cont.	27/08/2024	GraphioAM
DA8.00, Rev. H	Shadow Diagrams	27/08/2024	GraphioAM
DA8.01, Rev. H	Shadow Diagrams Cont.	27/08/2024	GraphioAM
DA8.02, Rev. H	Shadow Diagrams Cont.	27/08/2024	GraphioAM
DA8.03, Rev. H	Shadow Diagrams Cont.	27/08/2024	GraphioAM
DA8.04, Rev. H	Shadow Diagrams Cont.	27/08/2024	GraphioAM
DA8.05, Rev. H	Shadow Diagrams Cont.	27/08/2024	GraphioAM
DA8.06, Rev. H	Shadow Diagrams Cont.	27/08/2024	GraphioAM
Other Documents
Amended Clause 4.6 Request to Contravene a Development Standard, prepared by Chapman Planning Pty Ltd, dated 26 August 2024

2. The Applicant’s written requested prepared by Chapman Planning Pty Ltd dated 26 August 2024 pursuant to clause 4.6 of the Inner West Local Environmental Plan 2022 (IWLEP 2022) to vary the site coverage development standard in clause 4.3C of the IWLEP 2022 is upheld.

7. The Court orders that:

1. The appeal is upheld.

2. Development application number DA/2022/1110, as amended, for alterations and additions to existing dwelling including new first floor, new garage with studio over, on land identified at Lot 1 in DP 121802, known as 175 Young Street, Annandale NSW 2038, is determined by the grant of development consent subject to the conditions at Annexure A.

D M Dickson

Commissioner of the Court

Annexure A

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Decision last updated: 06 September 2024