VL4 Pty Ltd v Inner West Council

[2024] NSWLEC 1197

Land and Environment Court

New South Wales

Medium Neutral Citation:

VL4 Pty Ltd V Inner West Council [2024] NSWLEC 1197

Hearing dates:

Conciliation conference 19 December 2023 and 3 April 2024

Date of orders:

18 April 2024

Decision date:

18 April 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely on the documents listed in Annexure A.

(2) The Applicant shall pay the Respondent’s costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $6,000 within 28 days of this order.

(3) The appeal is upheld.

(4) Development consent is granted to development application DA/2023/0705, as amended, the Torrens Title subdivision of the site into three allotments and construction of a two-storey dwelling house on each new lot with car parking, landscaping and associated works at 16 to 18 Albert Street, Petersham NSW 2049, subject to the conditions in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – torrens subdivision and new dwellings – conciliation conference – amended plans – agreement between the parties – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Inner West Local Environmental Plan 2022, cll 2.3, 4.1, 4.3, 4.4, 6.1, 6.2, 6.8

State Environmental Planning Policy (Resilience and Hazards, s 4.6

Texts Cited:

Inner West Community Engagement Strategy 2022-24

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

VL4 Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
R Dunstan (Solicitor) (Respondent)

Solicitors:
Fortis Law Pty Limited (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/00330184

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of development application DA/2023/0705. The development application seeks consent for the Torrens Title subdivision of the site into three allotments and construction of a two-storey dwelling house within each new lot with carparking, landscaping and associated works. The development is proposed at 16-18 Albert Street, Petersham (Lot 17 DP 99 and Lot 1 DP 1081757) (‘the site’). The site also has frontage to Belgrave Street, Petersham.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 19 December 2023. I presided over the conciliation conference. Following a number of adjournments, an agreement was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. This 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 2 April 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 development application was lodged by VL4 Pty Ltd on 28 August 2023 with the consent of the owners of the land.

2. The development application was notified and advertised in accordance with the Inner West Community Engagement Strategy 2022-24 between 13 September and 27 September 2023. Eight submissions were received. Further, at the onsite component of the conciliation, four residents addressed the Court and detailed their concerns with the development application. The plans proposed for approval in this judgment have been amended and additional information provided, in part in response to the concerns raised by submissions and the residents who addressed the Court. 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. The proposed development is ‘BASIX development’ under the Environmental Planning and Assessment Regulation 2021 and a BASIX certificate is required for the development application. An updated BASIX certificate has been provided as part of the Amended Proposal satisfying these requirements.

5. 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 R2 Low Density 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 R2 Low Density Residential zone.

6. The development application complies with the following development standards from LEP 2022:

1. Clause 4.1: Minimum Lot size does not apply to the site.

2. Pursuant to cl 4.3: Height of Buildings a maximum building height of 9.5m applies to the site. The development application complies with the height development standard.

3. Pursuant to cl 4.4: Floor Space Ratio (FSR) a maximum FSR development standard of 1:1 applies to the site pursuant to cl 4.4(2C) of LEP 2022. The development proposed at 18 Belgrave Street proposes an FSR 1:0.64. The development proposed at 16A Albert Street proposes an FSR 1:0.61. The development application complies with the FSR development standard.

4. 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.

5. 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.

6. 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 a new building. The development application is accompanied by an Acoustic Report which provides recommendations in relation to construction materials and glazing to ensure acoustic amenity for future residents. Having considered the matters in cl 6.8(3) of LEP 2022, I am satisfied that none warrant the refusal of the development application.

7. Marrickville Development Control Plan 2011 (DCP 2011) applies to the site. The Statement of Environmental Impacts filed with the application details the compliance of the proposed development with DCP 2011. 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)).

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. Inner West Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending development application DA/2023/0705 in accordance with the plans and documents listed in Annexure A.

2. The Applicant has filed the amended development application with the Court on 2 April 2024.

7. The Court orders that:

1. The Applicant is granted leave to rely on the documents listed in Annexure A.

2. The Applicant shall pay the Respondent’s costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $6,000 within 28 days of this order.

3. The appeal is upheld.

4. Development consent is granted to development application DA/2023/0705, as amended, the Torrens Title subdivision of the site into three allotments and construction of a two-storey dwelling house on each new lot with car parking, landscaping and associated works at 16 to 18 Albert Street, Petersham NSW 2049, subject to the conditions in Annexure B.

D Dickson

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 18 April 2024