Weston v Inner West Council

[2021] NSWLEC 1654

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Weston v Inner West Council [2021] NSWLEC 1654

Hearing dates:

Conciliation conference on 19 October 2021

Date of orders:

27 October 2021

Decision date:

27 October 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The clause 4.6 requests for variations to the site coverage and floor space ratio development standards (prepared by Weir Phillips Heritage and Planning, dated 18 October 2021) under clauses 4.3A(3)(b) and 4.4(2B)(a)(ii), respectively, of the Leichhardt Local Environmental Plan 2013 are upheld.

(2) The appeal is upheld.

(3) Development Application number DA/2021/0138, as amended, for alterations and additions to the existing dwelling, new carport and swimming pool on land identified as Lot 59, Section 8 in Deposited Plan 1162 and known as 251 Lilyfield Road, Lilyfield NSW 2040, is approved in accordance with the conditions included at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – residential – alterations and additions – cl 4.6 written request to justify contravention of floor space ratio development standard – cl 4.6 written request to justify contravention of site coverage development standard – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Leichhardt Local Environmental Plan 2013, cll 1.2, 1.3, 2.3, 4.3, 4.3A, 4.4, 4.6, 6.1, 6.2, 6.4, 6.8, Schedule 5

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

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cl 3

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Adam Robert Weston (First Applicant)
Katina Nonie Weston (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor) (Applicant)
R Wilcher (Solicitor) (Respondent)

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

File Number(s):

2021/220938

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Residential Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an Appeal against the deemed refusal of a development application -residential DA/2021/0138 seeking development consent for alterations and additions, including new first floor, garage and pool (the Proposed Development) at 251 Lilyfield Road, Lilyfield NSW 2040 legally described as Lot 59 Section 8 DP 1162 (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 19 and 20 October 2021. I presided over the conciliation conference.

3. On 19 October 2021, the Respondent consented to the Applicant amending the Proposed Development (Amended DA). The Amended DA includes:

1. Amended architectural plans prepared by Brad Inwood Architects dated 1 August 2021 but provided on 19 October 2021 (Amended Plans), with the following amendments:

1. Deleting a timber deck and replacing it with landscaping, such that the Proposal, as amended, complies with the landscaped area development standard of cl 4.3A(1)(a) of the Leichhardt Local Environmental Plan 2013 (LLEP);

2. Deletion of the proposed garage, roof garden and bathroom and their replacement with a carport of a lowered scale;

3. Lowering the overall height of the first-floor addition from RL23.25 to RL22.80;

4. Deletion of the clerestory window above ‘Bedroom 4’;

5. Lowering of the eastern wall and roof over the void, where adjoining an existing balcony of No. 249 Lilyfield Road, to RL21.60.

2. Amended clause 4.6 requests in relation to (reduced) variations of the site coverage and floor space ratio development standards of the LLEP, prepared by Weir Phillips Heritage and Planning dated 18 October 2021 (Site Coverage Clause 4.6 Request and FSR Clause 4.6 Request respectively); and

3. Survey report reference 000224, prepared by McDonald Surveying dated 18 October 2021 (Survey Report), on the levels of the height poles erected by the Applicants.

4. 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 upholding the appeal and granting development consent to the development application subject to conditions.

5. 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.

6. 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 to be such as the terms of cl 4.6 of the LLEP to vary a development standard and other matters contained in State Environmental Planning Policies and the LLEP. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed document as follows below.

Jurisdictional Considerations

7. The development application was made with the consent (in writing) of the registered proprietors of the Site, being the Applicants in these proceedings.

8. Pursuant to cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. The Respondent has considered whether the Site is contaminated and, on account of the Site being historically used for residential purposes, has resolved that:

1. The Site poses no risk of contamination;

2. No further investigation of the Site is warranted; and

3. The Site is considered to be suitable for the Proposal, as amended.

9. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation) the Proposal is a BASIX affected development, containing a BASIX affected building. The development application was accompanied by a valid and appropriate BASIX certificate, which is unaffected by the amendments made to the Proposal in the Amended DA. The Respondent has reviewed the BASIX certificate and deemed it satisfactory.

10. Pursuant to cl 3 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) and the Sydney Harbour Catchment Map the Site is located within the Sydney Harbour Catchment. However, the Site is not located within the Foreshores and Waterways Area or a wetlands protection area and is not identified as a strategic foreshore site or a heritage item listed under the SREP. The Site is also not located in the vicinity of a heritage item listed under the SREP. The Respondent has considered the Proposal, as amended, to be satisfactory with respect to the SREP.

Leichhardt Local Environmental Plan 2013

11. The Respondent is satisfied that the Proposal, as amended, is consistent with the aims of the LLEP pursuant to cl 1.2 of the LLEP.

12. The Respondent is satisfied that the Proposal, as amended, is consistent with the zone objectives pursuant to cl 2.3 and the land use table (objectives for the Zone R1 General Residential) of the LLEP.

13. The Proposal is characterised as alterations and additions to an existing dwelling house under the LLEP. The Proposal is permissible with development consent in the R1 General Residential zone under the LLEP.

14. Pursuant to cl 4.3(2) and the Height of Buildings Map of the LLEP, the Respondent has not adopted a maximum height of building development standard for the Site.

15. Pursuant to cl 4.3A(3) of the LLEP, development consent must not be granted to development to which the clause applies unless:

1. For lots equal to or less than 235sqm in area, a minimum of 15% of the site area is provided as landscaped area (cl 4.3A(3)(a)(i)) (Landscaped Area Development Standard); and

2. Site coverage does not exceed 60% of the site area (cl 4.3A(3)(b)) (Site Coverage Development Standard).

16. The Proposed Development did not comply with the Landscaped Area Development Standard. However, the Amended DA provides an increase of landscaped area to a total of 42.25sqm, being 22.4% of the Site and result in the Proposal, as amended, achieving compliance with the Landscaped Area Development Standard. The Respondent is satisfied that the Amended Plans demonstrate compliance with the Landscaped Area Development Standard.

17. Pursuant to the schedule 5 and the Heritage Map of the LLEP, the Site is not an item of environmental heritage, is not located in the vicinity of an item of environmental heritage and is not located within a heritage conservation area.

18. Pursuant to the Acid Sulfate Soils Map of the LLEP, the Site is classified as Class 5 acid sulfate soils land. Whilst located within 500 metres of Class 2 land, the Proposal does not involve works below 5 metres Australian Height Datum and will not lower the water table below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. Therefore, the Proposal does not require consent under cl 6.1 of the LLEP and an acid sulfate soils management plan is not required.

19. The Proposal, as amended, includes a minor amount of works that are defined as earthworks under the LLEP. Pursuant to cl 6.2(3) of the LLEP, prior to the grant of any development consent for earthworks the consent authority must consider the earthworks matters identified under (a) to (h) of the clause. Having considered those matters, the Respondent is satisfied that the Proposal, as amended, is acceptable and that consent may be granted subject to conditions.

20. Pursuant to cl 6.4(3) of the LLEP, development consent must not be granted unless the consent authority is satisfied of the stormwater management matters identified under (a) to (c) of the clause. Having considered such matters, the Respondent is satisfied that the Proposal, as amended, is acceptable subject to conditions.

21. Pursuant to cl 6.8(3) of the LLEP, the consent authority must consider the effect of aircraft noise on future residents of development. Having considered such matters, the Respondent is satisfied that the Proposal, as amended, is acceptable subject to conditions.

22. The Respondent is satisfied that the Proposal is acceptable with respect to the Draft Leichhardt Local Environmental Plan 2020 and that consent may be granted subject to conditions.

Leichhardt Development Control Plan 2013

23. The Respondent has the relevant parts of the Leichhardt Development Control Plan 2013 (LDCP) that apply to the Amended DA and having considered these, the Respondent is satisfied that the Proposal, as amended, is acceptable and consent can be granted to the Amended DA subject to conditions.

24. 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. I adopt the reasons given by the parties and I now give my reasons in relation to the two cl 4.6 written requests to justify the contravention of FSR and Site Coverage development standards.

Is the contravention of FSR development standard (cl 4.4 LLEP) justified pursuant to cl 4.6 of the LLEP?

25. Pursuant to cl 4.4(2B)(a)(ii) as the Site has a total area of greater than 150sqm but less than 300sqm (being 188.9sqm), the maximum floor space ratio (FSR) applicable to the Site is 0.8:1 (FSR Development Standard) equating to 151.12sqm of gross floor area.

26. The Proposed Development, as amended, seeks an FSR of 0.85:1 (being 160.37sqm of gross floor area), which represents a 6.12% (or 9.25sqm) variation to the FSR Development Standard. The Applicants rely on the cl 4.6 request prepared by Weir Phillips Heritage and Planning dated 18 October 2021 (FSR cl 4.6 Request) to seek and justify the minor variation. The Respondent has considered the FSR cl 4.6 Request and is satisfied that it demonstrates:

1. Compliance with the FSR Development Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the LLEP); and

2. There are sufficient environmental planning grounds to justify contravening the FSR Development Standard (pursuant to cl 4.6(3)(b) of the LLEP).

27. I have read the FSR cl 4.6 Request and I am satisfied that compliance with the FSR Development Standard is unnecessary because the objectives of the FSR Development Standard are achieved notwithstanding the numerical noncompliance and relies on the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. The objectives of both the FSR Development Standard and the Zone R1- General Residential are addressed in the FSR cl 4.6 Request on page 6.

28. I am satisfied that the FSR cl 4.6 Request adequately addresses cl 4.6(3)(b) and that there are sufficient environmental planning grounds to justify the numerical contravention of the FSR Development Standard by reference to the decision in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 which establishes that environmental planning ground refer to grounds that related to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act. The FSR cl 4.6 Request then addresses the relevant objects on page 5 and I accept the conclusion on page 9 that there are sufficient environmental planning grounds to justify contravening the FRS Development Standard, specifically, and I quote from page 9:

“Responding appropriately to the desired future character as articulated in the Leichhardt Local Environmental Plan 2013 including maintaining the existing single storey form to the principal street frontage;

More efficient utilisation of the site and existing infrastructure;

Improved environmental sustainability by reducing development pressure on the urban fringe and providing more appropriate facilities for working from home;

Improved residential amenity; and

Avoiding adverse amenity impacts upon the locality by providing additional floor space in the attic space rather than a part of an additional storey.”

29. As a result, I am satisfied that the precondition under cl 4.6(4)(a)(i) of the LLEP for the consent authority to be satisfied that the FSR cl 4.6 Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LLEP, has been satisfied.

30. Further, for the reasons also set out in the FSR cl 4.6 Request, the Respondent has formed the requisite opinion of satisfaction with respect to:

1. The precondition under cl 4.6(4)(a)(ii) of the LLEP, that the consent authority be satisfied that the development will be in the public interest because it is consistent with the objectives of the particular development standard, and the objectives for development within the relevant zone in which the development is proposed to be carried out; and

2. The precondition under cl 4.6(4)(b) of the LLEP, in relation to concurrence from the Secretary.

31. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the FSR Development Standard in cl 4.4 of the LLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

Is the contravention of Site Coverage development standard (cl 4.3A LLEP) justified pursuant to cl 4.6 of the LLEP?

32. The Proposed Development, and as amended under the Amended DA, provides site coverage of 69% of the Site which contravenes the Site Coverage Development Standard of 60% (refer to [15] above).

33. The Applicants rely on the cl 4.6 requests prepared by Weir Phillips Heritage and Planning dated 18 October 2021 (Site Coverage cl 4.6 Request) to seek and justify the minor variation. The Respondent has considered the Site Coverage cl 4.6 Request and is satisfied that it demonstrates:

1. Compliance with the Site Coverage Development Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the LLEP); and

2. There are sufficient environmental planning grounds to justify contravening the Site Coverage Development Standard (pursuant to cl  4.6(3)(b) of the LLEP).

34. I have read the Site Coverage cl 4.6 Request and I am satisfied that compliance with the Site Coverage Development Standard is unnecessary because the objectives of the Site Coverage Development Standard are achieved notwithstanding the numerical noncompliance and relies on the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. The objectives of both the Site Coverage Development Standard and the Zone R1- General Residential are addressed in the FSR cl 4.6 Request on pages 6 and 7.

35. I am satisfied that the Site Coverage cl 4.6 Request adequately addresses cl  4.6(3)(b) and that there are sufficient environmental planning grounds to justify the numerical contravention of the Site Coverage Development Standard by reference to the decision in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 which establishes that environmental planning ground refer to grounds that related to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act. The Site Coverage cl 4.6 Request then addresses the relevant objects on pages 5 and 6 and I accept the conclusion on page 9 that there are sufficient environmental planning grounds to justify contravening the FRS Development Standard, specifically, and I quote from pages 9 and 10 as follows:

“Consistency with the character of the locality which commonly features rear parking structures and hard paved surfaces;

A reduction in reliance on public on street parking spaces;

Sufficient landscaped areas and private open space;

Adequate stormwater management given that the swimming pool (although included in site coverage calculations) is part of private open space and would not generate stormwater run off;

Consistency with the existing desired future character controls of LDCP 2013;

More efficient utilisation of the site and existing infrastructure;

More ecologically sustainable development by more efficiently utilising land within an existing urban area serviced by existing utilities thereby taking pressure off development on the urban fringe;

Covered car accommodation and on-site swimming facilities which would improve onsite amenity without compromising the amenity of surrounding development; and

Improved residential amenity.”

36. As a result, I am satisfied that the precondition under cl 4.6(4)(a)(i) of the LLEP for the consent authority to be satisfied that the Site Coverage Clause 4.6 Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LLEP, has been satisfied.

37. Further, for the reasons also set out in the Site Coverage Clause 4.6 Request, the Respondent has formed the requisite opinion of satisfaction with respect to:

1. The precondition under cl 4.6(4)(a)(ii) of the LLEP, that the consent authority be satisfied that the development will be in the public interest because it is consistent with the objectives of the particular development standard, and the objectives for development within the relevant zone in which the development is proposed to be carried out; and

1. The precondition under cl 4.6(4)(b) of the LLEP, in relation to concurrence from the Secretary.

38. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the Site Coverage Development Standard in cl 4.3A of the LLEP has adequately addressed the matters required to be demonstrated by cl  4.6(3) of the LLEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

39. 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.

40. The Court notes:

1. That the Respondent consents to the Applicant amending the application, pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000, as follows:

1. Amended architectural plans reference number 0909-03A, 0909-04, 0909-05, 0909-06, 0909-07A, 0909-08A, 0909-09A, 0909/10A and 0909-11A, prepared by Brad Inwood Architects and dated 1 August 2021 (provided on 19 October 2021);

2. Amended clause 4.6 requests for variations to the site coverage and floor space ratio development standards, prepared by Weir Phillips Heritage and Planning and dated 18 October 2021; and

3. Survey report reference 000224, prepared by McDonald Surveying and dated 18 October 2021.

2. That the Respondent has uploaded the amended application on the NSW planning portal on 19 October 2021.

3. That the Applicant has subsequently filed the amended application with the Court on 19 October 2021.

4. Based on the amended application, and pursuant to section 34(3) of the Land and Environment Court Act 1979, the parties have reached agreement as to the terms of a decision that are acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).

41. The Court orders that:

1. The clause 4.6 requests for variations to the site coverage and floor space ratio development standards (prepared by Weir Phillips Heriatge and Planning, dated 18 October 2021) under clauses 4.3A(3)(b) and 4.4(2B)(a)(ii), respectively, of the Leichhardt Local Environmental Plan 2013 are upheld.

2. The appeal is upheld.

3. Development Application number DA/2021/0138, as amended, for alterations and additions to the existing dwelling, new carport and swimming pool on land identified as Lot 59, Section 8 in Deposited Plan 1162 and known as 251 Lilyfield Road, Lilyfield NSW 2040, is approved in accordance with the conditions included at Annexure ‘A’.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (269521, pdf)

**********

Amendments

14 May 2025 - Changed legislation Environmental Planning and Assessment Act 1979 s 8.8 to s 8.7 on the cover page and body para [1]

Decision last updated: 14 May 2025