Wang v Inner West Council

[2021] NSWLEC 1197

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wang v Inner West Council [2021] NSWLEC 1197

Hearing dates:

Conciliation conference on 16 and 20 April 2021

Date of orders:

27 April 2021

Decision date:

27 April 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is granted leave to rely upon the amended plans and documents referred to in condition (d) of the conditions at Annexure “A”.

(2) Appeal upheld.

(3) Development Application DA 2019/27 for alterations and additions to the existing boarding house including two additional rooms bringing the site total to seventeen rooms, a second floor addition and new balcony over footpath and associated works at 95 Evans Street, Rozelle is approved subject to the conditions at Annexure “A”.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to existing boarding house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2005

Land and Environment Court Act 1979

Leichhardt Local Environmental Plan 2013

Roads Act 1993

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

State Environmental Planning Policy No 55 – Remediation of Land

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Category:

Principal judgment

Parties:

Jack Huaizhou Wang (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
R Pearson (Solicitor) (Applicant)
S Allam (Solicitor) (Respondent)

Solicitors:
Creagh and Creagh (Applicant)
Inner West Council (Respondent)

File Number(s):

2020/48661

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 - Development Appeal pursuant to s 8.7 pf the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of a development application No DA 2019/27 for alterations and additions to an existing boarding house, including two additional rooms bringing the site total to seventeen rooms, a second floor addition and new balcony over footpath and associated works (the Proposed Development) at 95 Evans Street, Rozelle legally described as Lot 44 Section H DP 119 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 16 and 20 April 2021. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court granting leave to the Applicant to rely upon amended plans and documents, upholding the appeal and granting development consent to the development application subject to conditions.

4. 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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied as follows:

1. One of the contentions raised by the Respondent in the Statement of Facts and Contentions (SOFAC) filed 11 March 2020 raised the jurisdictional prerequisite of the requirement pursuant to Schedule 1 of the Environmental Planning and Assessment Regulation 2000 that there be consent from the owner of the land upon which the Proposed Development applies. The Respondent states in the SOFAC that the application lacks the consent of Council as Land Owner/Road Authority for the proposed Verandah over the road reserve. The parties confirm that the Applicant is the owner of the Site and state that in relation to the works proposed on or over the road reserve, in reaching the Agreement, the Respondent is taken to have granted consent as required for the purposes of ss 138 and 139 of the Roads Act 1993.

2. I further note that the works proposed on or over the road reserve is dealt with in the consent conditions as a Deferred Commencement conditions as follows:

“Deferred Commencement

The following deferred commencement conditions must be complied with to the satisfaction of Council, prior to the issue of an operation Development Consent:

[…]

C.   Balconies over the road reserve

Approval is obtained pursuant to Section 149 of the Roads Act, 1993 from the Director of the Department of Planning and Environment for the lease of the airspace above Evans Street, Rozelle in relation to the construction of the balconies over the road reserve.”

3. In addition to the above deferred commencement condition, the conditions of consent further address works in the public domain, namely the verandah over the road reserve. In consent condition (cc) titled “Public Domain Works – Prior to Construction Certificate” the Applicant is required to provide evidence that the works on the Road Reserve have been approved by Council under s 138 of the Roads Act 1993 and such evidence incorporates a number of requirements including but not limited to evidence that the proposal is consistent with the executed Agreement for Lease of the airspace under s 149 of the Roads Act 1993, between the owner of the building and Council. I am therefore satisfied that the jurisdictional prerequisite of owner’s consent for the works on or over the road reserve is adequately addressed.

4. A consent authority is required to consider contamination of the land prior to granting consent pursuant to cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). The parties have referred the Court to page 38 of the Statement of Environmental Effects (SEE) prepared by BBF Town Planners dated January 2019 filed with the Class 1 Application on 14 February 2020 which addresses the likelihood of encountering contaminated soils on the Site and concludes that the likelihood is extremely low and that no further investigation of land contamination is warranted and that the site is suitable in its present state for the Proposed Development. I accept and adopt the reasons given in the SEE at page 38 as follows:

“Council’s records indicate that site has only been used for residential uses.

The subject site and surrounding land are not currently zoned to allow for any uses or activities listed in Table 1 of the contaminated land planning guidelines of SEPP 55.

The subject site does not constitute land declared to be an investigation area by a declaration of force under Division 2 of Part 3 of the Contaminated Land Management Act 1997.”

5. The written statement of reasons for upholding the appeal provided by the parties, provides that the Respondent has considered the Proposed Development and is satisfied that it confirms with the requirements of cll 7 and 10 of the State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 as the agreement between the parties should be taken to the authority conferred by a permit granted by the Respondent. In any event, the parties agreed that the Respondent is satisfied that any proposed works to vegetation are minor and not likely to adversely affect the heritage significance of the heritage conservation area.

6. In relation to the State Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) the Respondent has considered the Proposed Development and is satisfied that it does not engage the potentially relevant provisions of the SREP. I accept this position of satisfaction having reviewed the documents provided to the Court.

7. In accordance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 an updated BASIX certificate issued 24 November 2020 has been provided by the Applicant and is expressly included in the conditions of consent.

8. In relation to flood planning and stormwater management the Leichhardt Local Environmental Plan 2013 (LEP) at cl 6.3(3) Flood planning and at cl 6.4(3) Stormwater management provides as follows:

6.3(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a) is compatible with the flood hazard of the land, and

(b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

[…]

6.4(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a) 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

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

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

9. I have referred to in the SEE at page 23 at [5.5] which addresses flood planning and stormwater management and states that the Proposed Development is accompanied and supported by an engineering assessment and design by Clapham Design Service Consulting Engineers that addresses stormwater disposal from the Site. I accept the conclusion in the SEE at page 23 that based on the engineering assessment “it is assessed that the proposal avoids any significant adverse impacts of stormwater runoff on adjoining properties. The proposal is assessed as satisfactory in addressing stormwater management considerations.” In addition, I am satisfied that cl 6.4(3) of the LEP is complied with because of the inclusion of relevant consent condition.

6. For the reasons above, 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.

7. 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.

8. The Court orders:

1. The Applicant is granted leave to rely upon the amended plans and documents referred to in condition (d) of the conditions at Annexure “A”.

2. Appeal upheld.

3. Development Application DA 2019/27 for alterations and additions to the existing boarding house including two additional rooms bringing the site total to seventeen rooms, a second floor addition and new balcony over footpath and associated works at 95 Evans Street, Rozelle is approved subject to the conditions at Annexure “A”.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (292894, pdf)

Architectural Plans (15035640, pdf)

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Decision last updated: 28 April 2021