Studio Johnston Architects Pty Ltd v Inner West Council

Land and Environment Court (NSW)|2025-01-28

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the determination of a modification application for MOD/2024/0128 (modification application). DA/2023/0261 is a court granted development consent for demolition of existing dwellings, swimming pool and structures, remediation of the site, site amalgamation, and construction of a new four storey dwelling with parking, swimming pool, landscaping and associated works at 4 and 6 St Marys Street, Balmain East (legally known as Lot 1 in Deposited Plan 797330, Lot 2 in Deposited Plan 797330 and Lot 1 in Deposited Plan 712231) (site).
The proposed modifications are described as:

Addition of a double garage and widening of the Weston Street driveway.
Reconfiguration of internal layout.
Brick screen enclosure to the level one carport.

The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 28 January 2025. I presided over the conciliation conference.
The Court notes that the Respondent, as the relevant consent authority, has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending the modification application MOD/2024/0128 in accordance with the documents listed below (amended MA): Plan & Issue No. Plan Name Date Issued Prepared by A-100-002, K Site Plan 13/11/2024 Studio Johnston A-110-001, K Ground Floor 13/11/2024 Studio Johnston A-110-002, K Level 1 13/11/2024 Studio Johnston A-110-003, K Level 2 13/11/2024 Studio Johnston A-110-004, K Level 3 13/11/2024 Studio Johnston A-110-005, K Roof 13/11/2024 Studio Johnston A-210-003, K East Elevation 13/11/2024 Studio Johnston A-310-002, K Section BB 13/11/2024 Studio Johnston A-320-001, K Driveway Sections 13/11/2024 Studio Johnston SE01-D10822, D Landscape Cover page 12/12/2024 Dangar Barin Smith SE02-D10822, D Ground Floor Landscape Plan 12/12/2024 Dangar Barin Smith SE03-D10822, D First Floor Landscape Plan 12/12/2024 Dangar Barin Smith SE04-D10822, D Second Floor Landscape Plan 12/12/2024 Dangar Barin Smith SE05-D10822, D Third Floor Landscape Plan 12/12/2024 Dangar Barin Smith SE06-D10822, D Sections 1 12/12/2024 Dangar Barin Smith SE07-D10822, D Sections 2 12/12/2024 Dangar Barin Smith Schedule of Amendments 08/02/2025 Studio Johnston Statement of Environmental Effects Section 4.56 Modification - DA/2023/0261 December 2024 ABC Planning 001 Swept Path Analysis Ground Floor Garage Entry and Exit Movements 18/11/2024 PDC Consultants Landscape Design Compliance Statement 12/04/2024 Dangar Barin Smith 1780219S BASIX Certificate 17/01/2025 Chapman Environmental Services Pty Ltd

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 approving the modification application and modifying the development consent.
Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.
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 4.56 of the EPA Act to modify the development consent.

Jurisdictional Prerequisites

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 and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, 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. This is set out below.
I am satisfied that owners consent accompanied the modification application.
I have considered the documentation within the amended application and the parties' agreed jurisdictional statement at paragraphs 8.2 to 8.6 and Statement of Environmental Effects prepared by ABC Planning dated December 2024 (SEE). I accept that the proposed modifications to the approved dwelling will be substantially the same as the original development as the changes primarily relate to a garage, minor external changes and internal layout modifications (s 4.56(1)(a) of the EPA Act).
With respect to s 4.56(1)(b), (c) and (d) of the EPA Act, the modification application was notified between 14 May to 11 June 2024. Three objections were received in relation to the enclosure of the carport, view loss, parking and traffic, construction issues, impacts on the heritage conservation area and the bulk and scale. On the basis of the material accompanying the amended MA particularly the SEE, architectural plans prepared Studio Johnston Architects, Statement of Support (Urban Design) prepared by SJB dated April 2024, Heritage Impact Statement prepared by Weir Phillips dated 17 April 2024 (HIS) as well as the conditions of consent and jurisdictional statement, I accept that the issues have been adequately considered and addressed where relevant to the amended MA.
With respect to s 4.56(1A) of the EPA Act and the reasons for granting consent, in reviewing the parties' jurisdictional statement, SEE and Studio Johnston Architects Pty Ltd v Inner West Council [2024] NSWLEC 1020, the modification application does not offend the reasons for the grant of consent, noting that the original court consent was also through an agreement between the parties.
Further, I accept that the parties have adequately considered s 4.15(1) of the EPA Act as set out in detail in the jurisdictional statement and the SEE. I note:

Clause 4.3C landscaped areas of the Inner West Local Environmental Plan 2022 (IWLEP) is met.
Clause 4.4 FSR of the IWLEP is exceeded, now at 0.86:1. A cl 4.6 written request is not required (see: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 223; [2015] NSWLEC 65 at [34] - [35]) and the parties have considered the merits of the variation, noting the primarily subterranean nature of the works.
Clause 5.10 heritage conservation of the IWLEP has been considered, supported by the HIS.
Clause 6.3 Stormwater of the IWLEP has been considered and supported by amended stormwater drainage works.
An amended BASIX accompanies the amended MA and satisfies State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
Amended stormwater plans accompany the amended MA and the development will continue to satisfy ss 6.6, 6.7, 6.8 and 6.9 of State Environmental Planning Policy (Biodiversity and Conservation) 2021.

The parties agree and I accept that the provisions required to be addressed by ss 4.56 of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal and supported by the jurisdictional statement.

Conclusion

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.
I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.
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.

Orders:

The Court orders: 1. The appeal is upheld. 2. Development consent DA/2023/0261 for the demolition of existing dwellings, swimming pool and structures, remediation of the site, site amalgamation, and construction of a new four (4) storey dwelling with parking, swimming pool, landscaping and associated works at Lot 1 in DP 797330, Lot 2 in DP 797330 and Lot 1 in DP 712231, known as Nos 4 and 6 St Marys Street, Balmain East, is modified in the terms in Annexure A. 3. Development consent DA/2023/0261 for the demolition of existing dwellings, swimming pool and structures, remediation of the site, site amalgamation, and construction of a new four (4) storey dwelling with parking, swimming pool, landscaping and associated works at Lot 1 in DP 797330, Lot 2 in DP 797330 and Lot 1 in DP 712231, known as No's 4 and 6 St Marys Street, Balmain East, as modified by the Court is Annexure B.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2025

(2015) 209 LGERA 223

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Judgment (6 paragraphs)

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Cases Cited (3)