Yip v Inner West Council

[2022] NSWLEC 1547

Land and Environment Court

New South Wales

Medium Neutral Citation:

Yip v Inner West Council [2022] NSWLEC 1547

Hearing dates:

Conciliation conference on 14 and 15 September 2022

Date of orders:

07 October 2022

Decision date:

07 October 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Consent is granted for Development Application DA/2022/250, as amended, for the demolition of existing structures and construction of a new dwelling house at Lot A in DP 390835, known as 176 Beattie Street, Balmain, subject to the conditions contained at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – demolition – construction - residential - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, Pt 4

Environmental Planning and Assessment Regulation 2021

Inner West Local Environmental Plan 2022, Sch 5, cl 1.8A

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, s 34

Leichhardt Local Environmental Plan 2013, Sch 5, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2

Local Land Services Act 2013, s 60O

State Environmental Planning Policy (Biodiversity & Conservation) 2021, s 2.7

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

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

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, Ch 2

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

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Hiu Kwan Yip (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
Dr S Berveling (Applicant)
G Appleby (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Maddocks (Respondent)

File Number(s):

2022/153397

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an appeal against the refusal of Development Application No. DA/2022/250 seeking development consent for the demolition of the existing dwelling and constructions of a 2-storey dwelling, including new carport to the front (the Proposed Development) at 176 Beattie Street, Balmain NSW 2041, legally described as Lot A in DP 390835 (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 14 and 15 September 2022. I presided over the conciliation conference.

3. While drafting their Joint Expert Reports, the parties’ respective Town Planners, Heritage Experts, and the Traffic Engineers, considered amended Architectural Plans and Landscape Plans. The parties agree that these amended plans are acceptable.

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 the terms of the Leichhardt Local Environmental Plan 2013 (LLEP) and the various jurisdictional provisions contained within state environmental planning policies. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed joint jurisdictional statement which I have considered and I now summarise below.

7. The development application (DA) was lodged with the Respondent on 7 April 2022. At the time of lodgement of the DA, the LLEP was in force and applied to the Land. On 12 August 2022, the Inner West Local Environmental Plan 2022 (IWLEP) commenced. The IWLEP applies to the Land and repealed the LLEP. However, clause 1.8A of the IWLEP provides that if a development application has been made before the commencement of the IWLEP and the application has not been finally determined before that commencement, the application must be determined as if the IWLEP had not commenced. I am satisfied that the relevant local environmental planning instrument is the LLEP.

8. Pursuant to s. 4.15(1)(a)(ii) of the EPA Act, the IWLEP is to be taken into consideration as a proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority.

9. The Site is zoned R1 – General Residential pursuant to both the LLEP and the IWLEP. Development for the purposes of a dwelling house is permitted within this zone with development consent in accordance with the Land Use Table in the LLEP and the IWLEP. The objectives of the R1 Zone in the LLEP are:

• “To provide for the housing needs of the community.

• To provide for 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 improve opportunities to work from home.

• To provide housing that is compatible with the character, style, orientation and pattern of surrounding buildings, streetscapes, works and landscaped areas.

• To provide landscaped areas for the use and enjoyment of existing and future residents.

• To ensure that subdivision creates lots of regular shapes that are complementary to, and compatible with, the character, style, orientation and pattern of the surrounding area.

• To protect and enhance the amenity of existing and future residents and the neighbourhood.”

10. The objectives of the R1 Zone have been reduced in the IWLEP to the following:

• “To provide for the housing needs of the community.

• To provide for 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.”

11. These objectives are not jurisdictional pre-requisites to the granting of consent, however the parties agree that the DA in its amended format is consistent with the zone objectives.

12. The owners of the Site have provided consent to the lodgement of the DA as shown in the DA Pre‑Lodgement Application Form filed with the Class 1 Application. I am satisfied that the making of the DA complies with and meets the requirements of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

13. In relation to the consideration of whether the Site is contaminated and suitable for the proposed use, the State Environmental Planning Policy No. 55 – Remediation of Land (SEPP 55) was repealed on 1 March 2022. Its operative provisions were transferred to Chapter 4 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP). Section 30A(2) of the Interpretation Act 1987 provides as follows:

“The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred.”

14. Clause 7 of SEPP 55 has been transferred to s 4.6 of the Resilience & Hazards SEPP. Clause 4.6 is expressed in identical terms to cl 7 of SEPP 55.

15. Section 4.6(1) of the Resilience & Hazards SEPP precludes the granting of development consent unless the consent authority has considered relevantly whether the Land is contaminated. Clause 4.6(2) requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned, if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in cl. 4.6(4).

16. The Statement of Environmental Effects filed with the Class 1 Application deals with possible contamination at page 7, as follows:

“The existing site has been zoned and used for residential purposes for many years. The site is unlikely to have been used for any uses that would cause the site to be contaminated. The proposal is therefore consistent with SEPP 55.”

17. The parties agree with that conclusion. I am satisfied that there is no change to the use of the Site and accordingly a report is not required pursuant to cl 4.6(2) of the Resilience & Hazards SEPP. Pursuant to cl 4.6 of the Resilience & Hazards SEPP, the Court is satisfied that the Site is suitable for the proposed dwelling house.

18. An amended BASIX Certificate No. 1153603S_02 dated 2 September 2022 has been issued by LC Consulting Engineers, confirming the proposed development will meet the NSW Government’s requirements for sustainability as required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX). The Court is satisfied that the Proposed Development, as amended, meets BASIX requirements.

19. The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP) was repealed on 1 March 2022. Its operative provisions were transferred to Chapter 2 of the State Environmental Planning Policy (Biodiversity & Conservation) 2021 (Biodiversity & Conservation SEPP) and the provisions of s 30A(2) of the Interpretation Act 1987 applies.

20. For the avoidance of doubt, in the event that it is considered that the Proposed Development proposes the removal of vegetation to which Chapter 2 of the Biodiversity & Conservation SEPP applies, the parties explain as follows:

1. Section 2.7(1) of the Biodiversity & Conservation SEPP provides:

“(1) A permit or approval to clear vegetation is not required under this Chapter if it is clearing of a kind that is authorised under the Local Land Services Act 2013, section 60O or Part 5B”.

2. Section 60O of the Local Land Services Act 2013 authorises clearing of vegetation by a development consent under Pt 4 of the EPA Act. On that basis, in the present case the effect of the Vegetation SEPP Vegetation and now Chapter 2 of the Biodiversity & Conservation SEPP is overcome due to the need for development consent under Pt 4 of the EPA Act.

21. The Height of Buildings Map of the LLEP (and of the IWLEP) does not show the Land as being affected by a height of buildings development standard (cl 4.3, LLEP).

22. The Site has an area of 175.3m². Clause 4.3A(3) of the LLEP precludes the grant of consent unless the development includes landscaped area of at least 15% of the site area, and that the site coverage does not exceed 60% of the site area. The IWLEP retains this requirement in its cl 4.3C(3).

23. Drawing WD00 Rev D, the Cover Page of the amended plans filed on 14 September 2022, shows that the Proposed Development includes a landscaped area of 48.8m², being 28% of the site area, and that the site coverage is 68.6m², being 39% of the site area. The parties agree, and the Court is satisfied that the Proposed Development satisfies the landscaped area development standard in the LLEP.

24. With the Land being 175.3m² in area, cl 4.4(2B)(b) of the LLEP provides for the floor space ratio (FSR) on the Site not to exceed 0.8:1, whereas cl 4.4(2B)(c) of the IWLEP provides for the FSR on the Site not to exceed 0.7:1. The FSR of the proposed dwelling house is 0.79:1. The parties agree, and the Court is satisfied that the Proposed Development satisfies the FSR development standard in the LLEP.

25. Clause 5.10 of the LLEP requires the consent authority to consider the effect of the Proposed Development on the relevant heritage conservation area. The Site is within The Valley Conservation Area, as listed in Schedule 5 of the LLEP and IWLEP. It is also in the vicinity of 2 heritage items – being the terraces at 186 and 188 Beattie Street, being Items I126 and I127 respectively. The Applicant has provided information indicating that the existing building on the site has been extensively modified and very little original fabric remains. As such, the parties agree that demolition of the existing building is acceptable in this instance.

26. The amended plans, in response to the agreement reached by the planning and heritage experts in the Joint Expert Report filed 31 August 2022 also provide a design that is compatible with the established character of The Valley Conservation Area. On this basis, the Court is satisfied that cl 5.10 of the LLEP has been addressed.

27. Clause 5.21(2) of the LLEP precludes the grant of consent on land considered to be within the flood planning area unless the consent authority is satisfied that the Proposed Development satisfies the various matters listed in that clause. It is relevant that the Site is not land the consent authority considers to be within the flood planning area.

28. Clause 6.1 of the LLEP requires development consent for the carrying out of certain works on land which is shown of the Acid Sulfate Soils Map. The Land is mapped as ‘Class 5 Land’ and is within 500m of some Class 2 land. The works for the Proposed Development is not proposed to be carried out on land below 5m Australian Height Datum (AHD). Further, in any event, the works for the Proposed Development are unlikely to lower the water table on the Class 2 land within 500m of the Land, below 1m AHD. Accordingly, cl 6.1 does not apply to the works for the Proposed Development.

29. Clause 6.2 of the LLEP requires various matters to be taken into consideration in determining before consent is granted for earthworks (or for development involving ancillary earthworks). Clause 6.2(3) of the LLEP provides that before granting development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider various matters. The parties agree with the following in relation to those matters:

1. the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development,

1. The proposed development includes excavation in the south‑east corner of the basement to a depth of 300‑400mm, excavation for path and for staircase to basement of approximately 1200‑1500mm deep, totalling approximately 39.19m³ of excavation material, which is unlikely to affect drainage patterns and soil stability in the locality.

2. the effect of the development on the likely future use or redevelopment of the land,

1. The proposed development is unlikely to affect any future use or redevelopment of the land.

3. the quality of the fill or the soil to be excavated, or both,

1. The proposed development will require only approximately 1m³ of soil is to be excavated. It is most unlikely to be contaminated.

4. the effect of the development on the existing and likely amenity of adjoining properties,

1. The proposed development has been designed to fit well within its context and minimises any adverse effect on adjoining properties.

5. the source of any fill material and the destination of any excavated material,

1. Appendix D to the Statement of Environmental Effects – Site Waste Minimisation and Management Plan provides: “all waste generated during the construction phase will be reused, recycled to a best possible extent”.

6. the likelihood of disturbing relics,

1. The proposed development is most unlikely to disturb any relics.

7. the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area,

1. The proposed development is unlikely to adversely impact on any waterway, drinking water catchment or environmentally sensitive area.

8. any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

1. The design of the proposed development, together with conditions to be imposed to the grant of development consent will avoid, minimise or mitigate the impacts of the development.

30. On this basis, the Court is satisfied that the requirements for cl 6.2 of the LLEP have been met.

31. Stormwater plans are at Tab 17 of the Application Class 1 documents. Clause 6.4 of the LLEP precludes the grant of development consent unless the consent authority is satisfied that the development satisfies the matters set out in cl 6.4(3). The parties agree with the following in relation to those matters:

1. the development 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. the development includes on-site stormwater retention for use as an alternative supply of water, and

3. the development avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters.

32. The parties agree and the Court is satisfied that the Proposed Development satisfies the matters set out in cl 6.4(3).

33. The DA was notified by the Respondent between 21 April 2022 and 5 May 2022 as required by the Leichhardt Development Control Plan 2013 (LDCP) – Neighbourhood notification. No submissions were received.

34. 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 and I adopt the reasons given by the parties as I have set out above in this judgment.

35. 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:

36. The Court notes:

1. Inner West Council, as the relevant consent authority, has agreed under cl 37 of the Environmental Planning and Assessment Regulation 2022 to the Applicant amending the Development Application DA/2022/250 received 7 April 2022, the subject of these proceedings, in the following amended plans and documents (the DA amending documents):

1. Architectural Plans

Plan, Revision and Issue No.	Plan Name	Date Issued	Prepared by
WD00, Rev D	Cover Page	August 2022	D Studio
WD004, Rev B	Excavation Plan	September 2022	D Studio
WD100, Rev D	Basement Plan	August 2022	D Studio
WD101, Rev D	Ground Floor Plan	August 2022	D Studio
WD102, Rev D	First Floor Plan	August 2022	D Studio
WD103, Rev D	Ground Floor Plan/Roof Plan	August 2022	D Studio
WD200, Rev D	North Elevation Plan	August 2022	D Studio
WD201, Rev D	East Elevation Plan	August 2022	D Studio
WD202, Rev D	South Elevation Plan	August 2022	D Studio
WD203, Rev E	West Elevation Plan	September 2022	D Studio
WD300, Rev D	Section Plan	August 2022	D Studio
WD 400, Rev D	GFA	August 2022	D Studio
WD 401, Rev D	Shadow Diagrams	August 2022	D Studio
WD 402, Rev D	Shadow Diagrams	August 2022	D Studio
WD 403, Rev D	Shadow Diagrams	August 2022	D Studio
WD 404, Rev D	Shadow Diagrams	August 2022	D Studio
WD 405, Rev D	Shadow Diagrams	August 2022	D Studio
WD 406, Rev D	Shadow Diagrams	August 2022	D Studio
WD 407, Rev D	Shadow Diagrams	August 2022	D Studio
WD 420, Rev D	Material Board	August 2022	D Studio
LDA-00, Rev E	Landscape Cover Sheet	26/08/2022	Geoscapes
LDA-01, Rev E	Landscape Plan	26/08/2022	Geoscapes
LDA-02, Rev E	Landscape Detail Plan	26/08/2022	Geoscapes
LDA-03, Rev E	Landscape Specification and Details	26/08/2022	Geoscapes
LDA-04, Rev E	Planting Schedule & Imagery	26/08/2022	Geoscapes

2. BASIX Certificate No. 1153603S_02 dated 2 September 2022 has been issued by LC Consulting Engineers.

3. Nathers Certificate No. 0006965875 dated 1 September 2022.

2. Other Documents:

1. Heritage Significance Assessment Report by Rapport Pty Limited, Job 9239H dated August 2022.

2. Swept Path Analysis Drawing 1 of 3, Ref 20251-V1.4-SP dated 25 August 2022.

3. On‑Street Parking Circumstance Drawing 2 of 3, Ref 20251-V1.4-SP dated 25 August 2022.

4. Sub‑standard Kerb Side Parking Spaces Drawing 3 of 3, Ref 20251-V1.4-SP dated 25 August 2022.

5. Parking Occupancy Data, 18 August 2022.

2. The DA amending documents have been uploaded to the NSW Planning Portal on 14 September 2022.

3. The DA amending documents have been filed with the Court on 14 September 2022.

Orders:

37. The Court orders that:

1. The appeal is upheld.

2. Consent is granted for Development Application DA/2022/250, as amended, for the demolition of existing structures and construction of a new dwelling house at Lot A in DP 390835, known as 176 Beattie Street, Balmain, is granted consent subject to the conditions contained at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

153397.22 Annexure A (256826, pdf)

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Decision last updated: 07 October 2022