Zammit v Inner West Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zammit v Inner West Council [2019] NSWLEC 1074
Hearing dates:	7 – 8 February 2019
Date of orders:	26 February 2019
Decision date:	26 February 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	(1)   Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibit A and Exhibit B; (2)   The appeal is upheld; (3)   Development consent is granted for Development Application DA10.2017.257.1 for alterations and additions to the rear of the existing dwelling, including demolition of the existing car port, kitchen, dining, laundry and deck areas and construction of a new 2 storey addition, garage, landscaped garden, pool and rear deck at No.39 Tintern Road, Ashfield, subject to the conditions annexed hereto and marked “A”; (4)   The exhibits are returned, except for Exhibits A, B and 7.
Catchwords:	APPEAL: alterations and additions, heritage conservation area, good design
Legislation Cited:	Ashfield Local Environment Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Totem Queens Park Pty Ltd v Waverley Council [2004] NSWLEC 712
Texts Cited:	Better Placed, NSW Government Architect Inner West Comprehensive Development Control Plan 2016
Category:	Principal judgment
Parties:	Dylan Zammit (Applicant) Inner West Council (Respondent)
Representation:	Counsel: T To (Applicant)   Solicitors: Mills Oakley (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/204307
Publication restriction:	No

Judgment

Introduction

1. The Zammits are the owners of 39 Tintern Avenue, Ashfield. Dylan Zammit is appealing the deemed refusal of their application DA10.2017.257.1 by the Inner West Council, pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) for alterations and additions to the rear of the existing dwelling, including demolition of the existing car port, kitchen, dining, laundry and deck areas and construction of a new 2 storey addition, garage, landscaped garden, pool and rear deck.

2. The appeal was subject to conciliation on 7 February 2019, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated and proceeded forthwith to hearing on 7 – 8 February 2019, pursuant to s 34(4) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.

3. At the commencement of the hearing, leave was granted to the Applicant to rely on amended architectural plans (Ex A), amended landscape plans (Ex B), and amended stormwater plans (Ex C). The amended plans were generally regarded as responsive to the contentions, but did not resolve the principal issues in dispute.

The Proposal

4. The proposed development can be described as comprising three principal components;

1. Retention and restoration of an existing Federation bungalow.

2. A new two-storey addition located at the rear of the existing dwelling, with the first floor contained within a steeply pitched, slate…