White v Inner West Council

[2024] NSWLEC 1444

Land and Environment Court

New South Wales

Medium Neutral Citation:

White v Inner West Council [2024] NSWLEC 1444

Hearing dates:

Conciliation Conference 25 July 2024

Date of orders:

30 July 2024

Decision date:

30 July 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA/2023/0281, as amended, to disassemble an existing double carport framework and erect a new double carport with gable roof located at the front of Lot 1 in Deposited Plan 936642, also known as 30 Thorby Avenue, Leichhardt, is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – Development application - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10,

Land and Environment Court Act 1979, ss 17, 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 38

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

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

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Nigel White (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/19675

Publication restriction:

No

Judgment

Introduction

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application (DA/2023/0281) (Development Application) seeking consent to disassemble an existing double carport framework and erect a new double carport with gable roof at the front of land identified as Lot 1 in Deposited Plan 936642, known as 30 Thorby Street, Leichhardt NSW (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. A carport frame was constructed on the Subject Land without consent and was the subject of a Building Information Certificate (BIC) application to the respondent (BIC Application). The BIC Application was refused on 15 June 2021.

4. The Development Application was lodged with the respondent on 21 April 2023. As set out at [1], the Development Application seeks consent to demolish the existing double carport framework which was not regularised through the issue of a BIC, and to construct a new double carport in its place.

5. On 14 August 2023, the Development Application was refused by the respondent.

6. On 17 January 2024, the proceedings were commenced, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 25 July 2024.

8. Amended documents were filed with the Court on 22 July 2024 (Amended Development Application) cited at [34]. The amendments can be summarised as including:

1. amended architectural plans depicting changes to the roof form of the proposed carport;

2. amended landscaping plans depicting additional proposed landscaping; and

3. swept path diagrams.

9. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

10. 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.

Jurisdictional considerations

11. 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 s34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

12. The registered proprietor of the Subject Land provided landowner’s consent to the Development Application as per the Development Application Form dated 11 April 2023.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. I accept the parties’ submission that the requirements of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events and the fact that the Amended Development Application does not propose any earthworks.

Inner West Local Environmental Plan 2022

14. The Site is zoned R1 General Residential under the Inner West Local Environmental Plan 2012 (IWLEP). Accordingly, carports ancillary to dwelling houses are permitted with consent in the R1 zone. I have had regard to the zone objectives which are extracted below:

To provide for the housing needs of the community.

To provide a variety of housing types and densities.

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To provide residential development that maintains the character of built and natural features in the surrounding area.

15. The parties agree that cl 4.3 (height of buildings) does not apply to the Subject Land as there is no prescribed height of building control for the Subject Land under the IWLEP.

16. The parties agree that cl 4.3C (landscaped area for residential accommodation in Zone R1) applies to the Subject Land. Clause 4.3C(3)(a)(ii) requires that the landscaped area is to be at least 20% of the site area (for lot sizes larger than 235m²) and cl 4.3C(3)(b) requires that the site coverage does not exceed 60% of the site area.

17. The Amended Development Application a proposes a landscaped area of 62m² or 20.4% and site coverage of 157.72m² or 51.96%. Therefore, the parties agree that the Amended Development Application is compliant with cl 4.3C of the IWLEP.

18. The parties agree that cl 4.4 of the IWLEP (maximum floor space ratio) does not apply to the Amended Development Application as the proposal does not add to the floor space ratio of the existing dwelling on the Subject Land.

19. The parties agree that the Subject Land is not located within a heritage conservation area for the purposes of cl 5.10 of the IWLEP. However, the Subject Land is located adjacent to the Scarvell Estate Heritage Conservation Area and is therefore within the vicinity of a heritage conservation area for the purposes of cl 5.10(5)(c). The respondent does not contend that a heritage assessment is required in connection with the Amended Development Application.

20. The parties agree that cl 5.21 of the IWLEP (relating to flood planning) does not apply to the Amended Development Application as the Subject Land is not located within a flood planning area.

21. Pursuant to cl 6.1 of the IWLEP, the parties agree that the Subject Land is mapped as “Class 5” on the Acid Sulfate Soils Map. The parties further agree that cl 6.1(3) is not enlivened as the proposed works do not propose excavation and will not lower the water table.

22. The parties agree that cl 6.2 of the IWLEP (relating to earthworks) does not apply to the Amended Development Application as no earthworks are proposed.

23. Pursuant to cl 6.3 of the IWLEP, development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied 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 reasonably be avoided, minimises and mitigates the impact.

24. The parties agree that:

1. the proposed carport will be constructed over an existing concrete area and therefore does not affect the on-site infiltration of water;

2. there are appropriate conditions of consent which require stormwater runoff to be formally captured and directed to the existing drainage on-site (see Condition 16 of the Agreed Conditions); and

3. given the small size and nature of the proposal, on-site retention is not required in this case.

25. Having regard to the above, I am satisfied of the matters listed in cl 6.3(3) of the IWLEP.

26. The parties agree that cl 6.8 of the IWLEP applies to the Subject Land as the Subject Land is located within the Australian Noise Exposure Forecast (2033) Contour 20-25 contours and involves the erection of a new building. The parties submit, and I accept, that the Amended Development Application will not have any significant impact on the number of people affected by aircraft noise nor will it have any impact on noise or acoustic levels within the Subject Land.

Leichhardt Development Control Plan 2013

27. I note that the parties have considered the Leichhardt Development Control Plan 2013 (LDCP) in relation to the Amended Development Application and are satisfied that the Amended Development Application is acceptable and can be granted subject to conditions.

28. For the purposes of s 4.15(1)(a)(iii) of the EPA Act, I confirm that I have considered the relevant provisions of the LDCP as they relate to the Amended Development Application.

Remaining matters in s 4.15(1) of the EPA Act

29. The matters set out in s 4.15(1)(b), (c), and (e) are addressed in the Statement of Environmental Effects prepared by Planning Direction Pty Ltd dated April 2023 (Class 1 Application, tab 4, see pp 19-20).

30. In relation to s 4.15(d), the Development Application, as lodged, was notified between 10 and 24 May 2023. Five separate written submissions in support of the proposed development were received in response to the notification.

31. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

32. 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.

33. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

34. The Court notes that:

1. The respondent, 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/2023/0281 to rely on the documents listed below:

1. Architectural and Landscape Plans, prepared by MAADesign, Revision D, dated 26 June 2024; and

2. Swept Path Diagrams, prepared by Varga Traffic Planning, dated 26 June 2024.

2. The applicant filed the documents outlined above with the Court on 22 July 2024.

Orders

35. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/2023/0281, as amended, to disassemble an existing double carport framework and erect a new double carport with gable roof located at the front of Lot 1 in Deposited Plan 936642, also known as 30 Thorby Avenue, Leichhardt, is determined by the grant of consent subject to the conditions contained in Annexure A.

……………………….

N Targett

Commissioner of the Court

Annexure A

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Decision last updated: 30 July 2024