Wilson v Inner West Council

[2023] NSWLEC 1747

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wilson v Inner West Council [2023] NSWLEC 1747

Hearing dates:

Conciliation Conference on 15 and 16 November 2023

Date of orders:

07 December 2023

Decision date:

07 December 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application DA/2022/0675 is determined by grant of consent for the partial demolition, and ground and first floor additions to the existing dwelling house at 246 Catherine Street, Leichhardt, subject to the conditions contained at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – residential development – alterations and additions – desired future character – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 2.22, 4.16, 8.7, Sch 1

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

Land and Environment Court Act 1979, s 34

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

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

Texts Cited:

Airservices Australia, Sydney Airport ANEF 2039, 2018

Standards Australia, AS 2021:2015, 2015

Category:

Principal judgment

Parties:

Meron Wilson (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
C Koikas (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beatie (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/148437

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA/2022/0675 for part demolition, and ground and first floor alterations and additions to the rear of existing dwelling-house (the Proposed Development) at 246 Catherine Street, Leichhardt, legally described as Lot 1 in DP 2637 (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 15 and 16 November 2023. I 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 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. 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.

5. 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 a number of provisions in environmental planning instruments set out in a jurisdictional note provided by the parties to explain how the jurisdictional prerequisites have been satisfied.

7. The Proposed Development was notified initially between 7 September 2022 and 21 September 2022 in accordance with the community participation requirements of s 2.22 and Sch 1 of the EPA Act. The Respondent received two submissions in support of the proposal. The Respondent subsequently received one submission opposing the DA from the owner of 248 Catherine Street on 25 October 2023.

8. The Site is zoned R1 – General Residential under the Inner West Local Environmental Plan 2022 (IWLEP). The Proposed Development is characterised as a “dwelling house”, as that is defined in the Dictionary to the IWLEP. Dwelling houses are permissible with development consent in the R1 General Residential zone.

9. There is no applicable maximum “Height of Buildings” development standard in cl 4.3 of the IWLEP.

10. The Proposed Development complies with the “Landscaped areas for residential accommodation in Zone R1” development standard (20% = 56.6m²) in cl 4.3C(3)(a) of the IWLEP, as the site provides 20.6% = 58.2m² of soft landscaping (see DWG09E).

11. The Proposed Development additionally complies with the maximum “Site Coverage” development standard in cl 4.3C(3)(b) as 57.9% of the site is covered, which is less than the maximum 60% (see DWG09E).

12. The Proposed Development complies with the “Floor Space Ratio” development standard in cl 4.4 of the IWLEP of 0.7:1, as the FSR of the Proposed Development is 0.61:1 (see DWG09E).

13. The Site is not identified as an item of heritage, nor it is located within a heritage conservation area. The Site is, however, adjoining an item of landscaped heritage in item “I638” and the provisions of cl 5.10 of the IWLEP apply. The Proposed Development is supported by a Heritage Statement prepared by Paul Davies dated 21 September 2021. The proposed works are contained behind the front portion of the dwelling. As such, the works are well away from the street trees and will not be impacted by the proposal. No further assessment of impact is deemed necessary.

14. The Site is identified as containing Class 5 acid sulfate soils (ASS) pursuant to cl 6.1 of the IWLEP. The Proposed Development is considered to adequately satisfy this section as no works that would result in any significant adverse impacts to the watertable are proposed.

15. Pursuant to cl 6.3(3) of the IWLEP regarding stormwater management, the Proposed Development is considered to comply with the relevant requirements for stormwater management because the Proposed Development has been reviewed by Council’s stormwater engineers, who outlined no objection. The Respondent has proposed relevant conditions of consent to deal with stormwater management in Annexure A.

16. The site is located within the ANEF 20-25 contour, and as such an Acoustic Report was submitted with the application and filed with the Class 1 Application. Pursuant to cl 6.8 of the IWLEP, the parties have agreed to a condition of consent requiring the development to meet certain requirements in accordance with AS 2021:2015.

17. In accordance with s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the parties agree that consideration has been given to whether the land is contaminated. The Proposed Development is on land which has historically been used for residential purposes and is unlikely to contain any contamination. Accordingly, no further investigation is required for the purpose of s 4.6.

18. The Proposed Development is BASIX affected development as prescribed and pursuant to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. The Applicant has provided an updated BASIX Certificate No A403418_02, dated 16 November 2023

19. 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 in accordance with this judgment.

20. 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.

Notations

21. The Court notes that 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/2022/0675 in accordance with the following plans and documents filed on 16 November 2023:

Plan, Revision and Issue No.	Plan Name	Date Issued	Prepared by
DA03, Rev E	Proposed Ground Floor & Site Plan	16/11/2023	Robert Parisi Architecture & Design
DA04, Rev D	Proposed First Floor Plan	16/11/2023	Robert Parisi Architecture & Design
DA05, Rev D	Proposed Roof Plan	16/11/2023	Robert Parisi Architecture & Design
DA06, Rev D	North & South Elevation Plan	16/11/2023	Robert Parisi Architecture & Design
DA07, Rev D	East & West Elevation Plan	16/11/2023	Robert Parisi Architecture & Design
DA08, Rev D	Section A-A	16/11/2023	Robert Parisi Architecture & Design
DA09, Rev E	Area Schedule	16/11/2023	Robert Parisi Architecture & Design
BASIX Certificate	No. A403418_02	16/11/2023

(“the amended DA documents”)

Orders

22. The Court orders:

1. The appeal is upheld.

2. Development Application DA/2022/0675 is determined by grant of consent for the partial demolition, and ground and first floor additions to the existing dwelling house at 246 Catherine Street, Leichhardt, subject to the conditions contained at Annexure ‘A’.

E Espinosa

Commissioner of the Court

148437.23 Annexure A

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Decision last updated: 07 December 2023