Unique Developments Pty Ltd v Inner West Council

[2021] NSWLEC 1653

Land and Environment Court

New South Wales

Medium Neutral Citation:

Unique Developments Pty Ltd v Inner West Council [2021] NSWLEC 1653

Hearing dates:

Conciliation conference on 3 and 27 September 2021

Date of orders:

27 October 2021

Decision date:

27 October 2021

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

Refer to the orders below at [15]

Catchwords:

DEVELOPMENT APPLICATION – construction of attached dwellings – Torrens subdivision into 7 lots –– conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Land and Environment Court Act 1979 s 34

Marrickville Local Environmental Plan 2011 cll 2.7, 4.3, 4.4, 5.3, 5.10, 5.21, 6.1, 6.4, 6.5

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

State Environmental Planning Policy No 55—Remediation of Land cl 7

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (June 2021)

Category:

Principal judgment

Parties:

Unique Developments Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Whealey (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Inner West Council (Respondent)

File Number(s):

2021/174434

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Inner West Local Planning Panel of Development Application No DA/2020/0993 (the DA). In exercising the functions of 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 1,086m² parcel of land identified as Lot 411 in DP 737291 at 29 Gilpin Street, Camperdown (the site). The DA as submitted to the Inner West Council (Council) on 4 March 2021 sought consent for demolition of the existing structures and the construction of seven attached dwellings with associated parking and landscaping and the Torrens title subdivision of the land into seven lots. The DA was notified in accordance with Council’s policy over the period 1 to 21 December 2020, resulting in the receipt of 22 objections.

3. On 26 March 2021 revised plans and additional information were provided to Council in response to a request from Council, dated 23 February 2021. The revised plans and additional information were also notified in accordance with Council’s policy, between 8 and 29 April 2021, resulting in eight objections. The DA was refused by the Inner West Local Planning Panel on 8 June 2021.

4. On 17 June 2021 the Applicant lodged this Class 1 Appeal with the Court. On 14 July 2021 the Council filed its Statement of Facts and Contentions (SOFC). The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, held on 3 and 27 September 2021. Due to the Court’s COVID-19 Pandemic Arrangements Policy (June 2021) (COVID-19 Policy) restrictions in place at the time there was no site view undertaken as part of the proceedings. Oral submissions from objectors were taken via MS Teams prior to commencement of the conference.

5. Amendments to the plans, prepared by ES Design, Revision G dated 24 September 2021 (the final plans) were then made to address the matters raised in the SOFC, concerns raised by Council during the s34 conference and by the public in the oral and written submissions. The final plans and other documents that comprised the amended DA, including an Amended Landscape Planting Plan dated 14 September 2021, amended Stormwater Plans dated 15 September 2021 and amended BASIX certificates, dated 23 September 2021, were lodged on the NSW planning portal on 27 September 2021.

6. On 27 September 2021 the parties advised the Court that they had reached an agreement and provided to it a copy of that agreement along with draft conditions, a copy of the amended DA documentation and a Jurisdictional Statement.

7. The main changes between the original plans filed with the Class 1 Application and the final plans the subject of the s34 agreement are:

1. Design changes to the front fences and north (Gilpin Street) elevations.

2. The removal of rear balconies from the first floor (and south elevation) of the dwellings.

3. Changes to the garage roof form, materials, first floor layouts and windows, including raising the sill heights (to 1600mm) on the south (laneway) elevation of the garages.

8. 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 the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

Satisfaction of jurisdiction

9. The relevant jurisdictional matters have been identified by the parties. In relation to the Marrickville Local Environmental Plan 2011 (MLEP) the relevant provisions are:

1. The development is for the purposes of ‘attached dwellings’, which is permissible with consent in the R3 Medium Density Residential Zone (R3 Zone), and is consistent with the objectives of the R3 Zone. Demolition is permissible under cl 2.7 of the MLEP.

2. The maximum height of the development complies with the 9.5m height of buildings development standard at cl 4.3 of the MLEP.

3. The site is located on land labelled “F” on the Floor Space Ratio (FSR) Map (Sheet FSR_003) and as the development is for attached dwellings resulting in 7 development lots each with a site area of less than 150m² the applicable FSR, by virtue of cl 4.4(2A), is 1.1:1. The development complies with this standard.

4. Clause 5.3 – Development near zone boundaries - applies. The site is near the zone boundary of R2 Low Density Residential land and the development is not inconsistent with the objectives for development in both zones.

5. Clause 6.5 – Development in areas affected by aircraft noise - applies. The site is located within the 20-25 ANEF contours and as such an ANEF Assessment (Acoustic Report) by West & Associates has been prepared. The Acoustic Report addresses the noise impact on the future residents and makes recommendations to ensure that adequate noise attenuation measures are provided.

6. The site is not identified as:

1. a heritage item, nor is it affected by other provisions of cl5.10 of the MLEP;

2. not located within a flood planning area (cl 5.21);

3. not on the Acid Sulfate Soils Map (cl 6.1); and

4. is not within a terrestrial biodiversity area (cl 6.4).

10. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), applies to the land and requires consideration of any contamination and associated remediation. The parties advise that based on the long term use of the site for residential purposes, and no proposal to change that use, it is unlikely the site is contaminated. Further investigations are not considered necessary and the parties agree the proposal satisfies the matters outlined in cl 7 of SEPP 55.

11. In relation to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (the BASIX SEPP), seven amended BASIX certificates, all dated 23 September 2021, have been provided demonstrating compliance with the BASIX SEPP, and these are referenced in the conditions of consent.

12. The parties also agree that the DA can be approved taking into account the matters for consideration in s 4.15(b) – (e) of the EPA Act, including that the DA as amended, and subject to the agreed conditions, has addressed relevant concerns raised in public submissions.

Disposal of proceedings in accordance with the parties’ decision

13. 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’ agreement.

14. The Court notes:

1. That 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 DA2020/0993.

2. That the amended application set out below was lodged on the NSW planning portal on 27 September 2021.

3. That the Applicant subsequently filed the amended application with the Court on 27 September 2021.

4. By consent, development application DA2020/0993 is amended as per the following table of documentation:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural plans
Demolition Plan	20153-02	Issue G	24/09/2021	ES Design
Subdivision Plan	20153-03	Issue G	24/09/2021	ES Design
Site Plan	20153-04	Issue G	24/09/2021	ES Design
Ground Floor Plan	20153-05	Issue G	24/09/2021	ES Design
First Floor Plan	20153-06	Issue G	24/09/2021	ES Design
Second Floor Plan	20153-07	Issue G	24/09/2021	ES Design
Roof Plan	20153-08	Issue G	24/09/2021	ES Design
North and East Elevation	20153-09	Issue G	24/09/2021	ES Design
South and West Elevations	20153-10	Issue G	24/09/2021	ES Design
North and South Elevations (Garage)	20153-11	Issue G	24/09/2021	ES Design
Section View	20153-12	Issue G	24/09/2021	ES Design
Schedule of External Materials Colours and Finishes	20153-14	Issue G	24/09/2021	ES Design
Front Fence Details	20153-15	Issue G	24/09/2021	ES Design
Long Sections Along Trade Lane	20153-25	Issue G	24/09/2021	ES Design
Typical Section	20153-30	Issue G	24/09/2021	ES Design
Privacy Screen Details	20153-31	Issue G	24/09/2021	ES Design
Landscape Plans
Landscape Planting Plan	L01/1K25118	Rev D	14/09/2021	Michael Siu Landscape Architects
Stormwater Plans
Ground Floor Plan	H306-S1/6	Rev C	15/09/2021	TAA Consulting Engineers
First Floor Plan	H306-S2/6	Rev C	15/09/2021	TAA Consulting Engineers
Second Floor Plan	H306-S3/6	Rev C	15/09/2021	TAA Consulting Engineers
Roof Plan	H306-S4/6	Rev C	15/09/2021	TAA Consulting Engineers
BASIX Certificates
Unit 1	Certificate No. 1142351S_06	-	23/09/2021	Noura Al Hazzouri
Unit 2	Certificate No. 1142686S_03	23/09/2021	Noura Al Hazzouri
Unit 3	Certificate No. 1142687S_03	23/09/2021	Noura Al Hazzouri
Unit 4	Certificate No. 1142688S_03	-	23/09/2021	Noura Al Hazzouri
Unit 5	Certificate No. 1142690S_03	-	23/09/2021	Noura Al Hazzouri
Unit 6	Certificate No.1142691S_03	-	23/09/2021	Noura Al Hazzouri
Unit 7	Certificate No. 1142692S_03	-	23/09/2021	Noura Al Hazzouri

15. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to development application No. DA2020/0993 for the demolition of existing structures, tree removal, Torrens title subdivision into 7 lots, and construction of 7 attached dwellings, 5 detached garages with lofts and associated landscaping at 29 Gilpin Street, Camperdown, subject to the conditions of consent in Annexure ‘A’.

3. The Respondent is directed to register the development consent on the NSW planning portal in accordance with s 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days.

4. The Respondent is to publish a notice of the development consent granted in relation to Development Application No. DA2020/0993 on its website in accordance with clause 124 of the Environmental Planning and Assessment Regulation 2000 (NSW) within 14 days of the date of these orders.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (282112, pdf)

Proposed Site Plan (471483, pdf)

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Decision last updated: 27 October 2021