Wright v Inner West Council

[2024] NSWLEC 1232

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wright v Inner West Council [2024] NSWLEC 1232

Hearing dates:

Conciliation conference held on 23 and 24 April 2024

Date of orders:

03 April 2024

Decision date:

03 April 2024

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA/2023/0331 seeking Torrens title subdivision of the rear of 5 Roberts Street into two Torrens Title allotments, construction of a semi-detached dwelling house on each allotment and associated landscaping on Lot 100 Deposited Plan 1286139, known as 5 Roberts Street, St Peters is determined by the grant of consent, and subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – semi-detached dwellings – Torrens title subdivision - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Inner West Local Environmental Plan 2022, cl 2.3, 6.3

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

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

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

James Alex Wright (First Applicant)
Natalie Nicole Wright (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
J Smith (Applicants)
S Turner (Solicitor)(Respondent)

Solicitors:
McKees Legal (Applicants)
Inner West Council (Respondent)

File Number(s):

2023/314090

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA/2023/0331 by Inner West Council (hereafter the Council), seeking Torrens title subdivision of the rear (future Lot 2) of 5 Roberts Street into two Torrens Title allotments, construction of a semi-detached dwelling house on each new allotment with associated landscaping on Lot 100 Deposited Plan 1286139, known as 5 Roberts Street, St Peters (hereafter the site).

Background

2. The site is subject to a Development Consent DA/2022/1149 (the Consent) approved by Council on 17 April 2023, which granted a two lot Torrens title subdivision on the site, and demolition of a carport and shed. The subdivision has not yet been registered and demolition has not been effected. The DA under appeal relates to the future Lot 2, as described in the Consent.

3. The DA was lodged with Council on 9 May 2023, with one submission in objection received during the notification period. The DA was determined as refused on 16 August 2023.

4. The Applicants appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), with an onsite view at request of the parties.

6. The Council agreed for the Applicants to amend the DA, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). Based on the amended DA and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings, pursuant to s 34(3) of the LEC Act. The parties agree that the contentions of Council have been resolved, and that the Council has undertaken an appropriate merit assessment, including considering an adjoining resident’s issues raised in objection.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, in consideration of s 4.15(1), to grant consent to Development Application DA/2023/0331, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the DA. The following jurisdictional requirements have been specifically considered and are satisfied:

1. Inner West Local Environmental Plan 2022 (IWLEP):

1. Pursuant to cl 2.3 of the IWLEP, the proposed development is situated over land zoned R2 Low Density. The proposed development is permissible with consent in this zone, pursuant to cl 2.3.

2. The amended DA is supported by plans and documents, that sufficiently address the relevant objectives, aims, standards and provisions of the IWLEP.

3. Relevant to the contentions raised by Council, the site is affected by overland (stormwater) flow, pursuant to cl 6.3 of the IWLEP. The experts agree that the amended DA has considered and sufficiently demonstrates effective stormwater management that does not result in adverse water related impacts, that is supported by agreed conditions of consent.

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

1. Pursuant to the SEPP BASIX, the proposed development is a ‘BASIX affected building’. The amended DA relies on a BASIX Certificate (1382073M_02) issued on 23 April 2024, prepared consistent with the requirements of the SEPP BASIX and EPA Reg.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site has historically been used as a residence and Council is satisfied there are no records of contamination relating to the site. The contamination status of the site is appropriately considered, and the relevant requirements of s 4.6 of the SEPP Resilience are addressed.

4. Marrickville Development Control Plan 2011 (MDCP):

1. The relevant requirements of the MDCP are generally complied with based on the amended plans, supporting documents to the amended DA and the conditions of consent. Council has undertaken an appropriate merit assessment of the relevant requirements of the MDCP.

2. The original application was publicly notified in accordance with the MDCP. The submission received during the notification period has been considered in the merit assessment by Council.

9. Pursuant to s 23 of the EPA Reg, the Applicants have satisfied the Court with the provision of consent from the landowner relevant to the site. All proposed works are explained to the Court as being within the site.

Grant of consent

10. Based on the amended plans and supporting documents to the DA, together with a jurisdictional assessment and expert reports relating to planning and stormwater, the parties confirm to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

11. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to the orders sought and that Development Application DA/2023/0331, as amended, should be determined by the grant of consent.

12. As the parties' agreement 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.

13. The Court notes that:

1. The Inner West Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, for the Applicant to amend Development Application DA/2023/0331, as follows:

1. Architectural Plans prepared by Blu Print Designs, Revision F, dated 23 April 2024:

1. DA01 – Site, Roof & Sediment Control Plan;

2. DA02 – Sediment Control Notes;

3. DA03 – BASIX Notes;

4. DA04 – Subdivision Analysis Plan;

5. DA05 - Subdivision Plan;

6. DA06 – Ground Floor Plan;

7. DA07 – First Floor;

8. DA08 – Roof Plan;

9. DA09 – Calculation Plan;

10. DA10 – South East Elevations & North West Elevation;

11. DA11 – South West Elevations & North East Elevation;

12. DA12 – North West & South East Elevation;

13. DA13 – Sections.

2. Landscape Plans prepared by Michael Sui Landscape Architects, revision C dated 23 April 2024.

1. L01/1- K26707- Landscape Planting Plan.

3. BASIX Certificate No. 1382073M, dated 24 April 2024.

2. The Applicant has filed the amendments to the DA on 24 April 2024.

14. The Court orders that:

1. The appeal is upheld.

2. Development Application DA/2023/0331 seeking Torrens title subdivision of the rear of 5 Roberts Street into two Torrens Title allotments, construction of a semi-detached dwelling house on each allotment and associated landscaping on Lot 100 Deposited Plan 1286139, known as 5 Roberts Street, St Peters is determined by the grant of consent, and subject to the conditions set out in Annexure A.

S Bish

Commissioner of the Court

23.314090 Annexure A

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Decision last updated: 03 May 2024