COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 against the refusal by the Inner West Council (the Respondent) of Development Application No. D/2018/639 for ground and first floor works alterations to the existing dwelling at 36 Moore Street, Rozelle that is legally described as Lot 16 in DP 769 (the Site).
The appeal was listed for mandatory conciliation on 17 August 2020, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). However, prior to the conciliation conference, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 13 August 2020.
The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.
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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [8].
I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:
1. The site is located within the R1 General Residential zone as identified by the Leichhardt Local Environmental Plan 2013 (LLEP). The provisions of the R1 zone permit dwelling house development with consent that is consistent with the objectives of the zone, which are as follows
• 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.
1. Pursuant to cl 4.3A(3) of the LLEP, development consent must not be granted to development to which the clause applies unless landscaped area equal to 15% of the area of the Site is provided and site coverage does not exceed 60% of the Site area. On the basis of the drawings, I am satisfied that the proposed development complies with the requirements of cl 4.3A of the LLEP with respect to landscaped area and site coverage.
2. As the site area is 164.9m2, the provisions of cl 4.4(2B)(d)(ii) apply in respect of the allowable floor space ratio (FSR). The objectives of the FSR standard are:
(1) The objectives of this clause are as follows -
(a) to ensure that residential accommodation -
(i) is compatible with the desired future character of the area in relation to building bulk, form and scale, and
(ii) provides a suitable balance between landscaped areas and the built form, and
(iii) minimises the impact of the bulk and scale of buildings,
(2) to ensure that non-residential development is compatible with the desired future character of the area in relation to building bulk, form and scale.
1. The proposal exceeds the permissible FSR of 0.8:1 and the Applicant relies upon a request to vary the development standard in accordance with cl 4.6 of the LLEP. I am satisfied that the written request adequately addresses the matters in cl 4.6(3)(a) and (b) for the following reasons:
1. Firstly, that compliance with the FSR development standard is unreasonable and unnecessary as the overall bulk, form and scale of the existing dwelling, when viewed from Moore Street, is retained and compatible with the diversity of architectural styles in the local area. Furthermore, the rear addition replicates the existing rear alignments and existing and contributory features such as front verandah, chimney and simple gable roof form are retained, and selected materials and finishes complement the existing dwelling and streetscape. Additionally, compliance with the landscaped area and site coverage results in additional landscaped area than the present circumstance.
2. Secondly, I am satisfied that there are sufficient environmental planning grounds to justify the development standard because of the location of additional area to the rear of the existing dwelling at ground floor level, and in a manner that accommodates for flood planning, and at the first floor level which imposes no adverse amenity impacts on adjoining properties while maintaining the overall scale and form of the existing dwelling in its context.
1. I have considered the exceedance of the FSR standard, and I am directly satisfied that the proposal is consistent with the objectives of the standard itself, and the zone objectives at [5(1)] and so is in the public interest, as required by cl 4.6(4)(a)(ii). Furthermore, given the minor nature of the exceedance, I am satisfied that the concurrence of the Secretary has been obtained by virtue of the Planning Circular PS 20-002, dated 5 May 2020.
2. As the site is located within a Heritage Conservation Area - General according to the Heritage Map at cl 5.10 of the LLEP, and known as 'The Valley', I must consider the effect of the proposed development on the heritage significance of the area. On a careful reading of the drawings, including the materials and finishes schedule, and the agreement of the parties on the matter, I am satisfied that the effect on the heritage conservation area is acceptable in accordance with subcl 5.10(4) of the LLEP.
3. Clause 6.2 of the LLEP requires consideration of certain matters in respect of the earthworks proposed by the development. I consider the extent of earthworks required to be minor and so be acceptable in respect of those matters set out at cl 6.2(3).
4. Clause 6.3 of the LLEP requires that the consent authority, or the Court on appeal, be satisfied in respect of flood planning provisions. On the basis of the elevated rear addition and conditions of consent relating to flood planning, I am satisfied as required by subcl 6.3(3) of the LLEP.
5. Clause 6.4 of the LLEP requires that the consent authority, or the Court on appeal, be satisfied in respect of stormwater management. On the basis of conditions of consent relating to stormwater drainage system, I am satisfied as required by subcl 6.4(3) of the LLEP.
6. In respect of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55), I am satisfied that the subject land has been residential in nature and is or will be made to be suitable for the development.
7. Finally, I am satisfied that the application is accompanied by a BASIX certificate, prepared in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (Regulation).
Wilk v Inner West Council [2020] NSWLEC 1377 | Case summary | Zoe
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.
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.
The Court orders that:
1. The Applicant is granted leave to amend Development Application D/2018/639 and to rely upon the amended plans and documents listed in Condition 1 of Annexure "A" hereto.
2. The Applicant's written request to vary the floor space ratio development standard at clause 4.4(2B)(d)(ii) of the Leichhardt Local Environmental Plan 2013, made pursuant to clause 4.6 of the Leichhardt Local Environmental Plan 2013, is upheld.
3. The appeal is upheld.
4. Development consent for Development Application D/2018/639 for the ground and first floor works alterations to the existing dwelling at 36 Moore Street, Rozelle NSW 2039 is granted subject to the conditions of consent annexed hereto and marked "A".
[2]
Commissioner of the Court
Annexure A (186412, pdf)
Plans (1017021, pdf)
[3]
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Decision last updated: 19 August 2020