Studio Johnston Architects Pty Ltd v Inner West Council

1. 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.
2. 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.
3. 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.
4. The parties' decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent.

Jurisdictional Prerequisites

1. 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.
2. I am satisfied that owners consent accompanied the modification application.
3. 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).
4. 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.
5. 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.
6. 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.

1. 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

1. 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.
2. 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.
3. 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:

1. 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.

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