Chaisumdet v City of Canada Bay Council

Parties: Bounchong Chaisumdet (First Applicant)
Fang Ping Chaisumdet (Second Applicant)
City of Canada Bay Council (Respondent)

Representation: Counsel:
E Whitney (Solicitor) (Applicants)
R McCulloch (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicants)
Pikes & Verekers Lawyers (Respondent)

File Number(s): 2024/425697

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2024/0072 for alterations and additions to the former Blacksmith’s shop to create a new dwelling house (the proposal), at 123 Peninsula Drive, Breakfast Point (Lot 46 in DP 270347) (the site), by the City of Canada Bay Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 May 2025. I presided over the conciliation conference. 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. 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.

3. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021. The following plans and documents comprise the amended application:

| TAB | DOCUMENT | DATE | | 1 | Architectural Plans prepared by MHN Design Union • DA1101 – Site Plan (Rev C) • DA2000 – Basement Plan (Rev E) • DA2001 – Ground Floor Plan (Rev E) • DA2002 – First Floor Plan (Rev E) • DA2003 – Roof Plan (Rev D) • DA3000 – Elevation North + South (Rev D) • DA3001 – Elevation East + West (Rev D) • DA3100 – Section A & B (Rev E) • DA3101 – Section C & D (Rev E) • DA6000 – External Finishes (Rev D) | 22 May 2025 | | 2 | Sampling, Analysis and Quality Plan (SAQP) prepared by GSNE Services Pty Ltd | 25 February 2025 | | 3 | Amended Landscape Plans prepared by Wyer & Co | 20 May 2025 | | 4 | Acid Sulfate Soil Management Plan prepared by GSNE Services Pty Ltd | 1 April 2025 | | 5 | Amended Heritage Impact Statement prepared by Weir Phillips Heritage 3789692 | 29 April 2025 | | 6 | Schedule of Conservation Works prepared by Weir Phillips Heritage | 18 May 2025 | | 7 | Geotechnical Investigation Report prepared by GSNE Services Pty Ltd | 19 March 2025 | | 8 | Contaminated Land Search prepared by Lotsearch Pty Ltd | 7 August 2020 | | 9 | Structural Statement prepared by Dunnings Consulting Engineers | 21 May 2025 | | 10 | EPA Duty to Report Notification | 30 April 2025 | | 11 | Dewatering Management Plan prepared by GSNE Services Pty Ltd | 9 May 2025 | | 12 | Remediation Action Plan prepared by GSNE Services Pty Ltd | 30 April 2025 |

5. The application, as amended, seeks consent for removal of trees, internal alterations and additions to the existing building, construction of two new structures, basement, swimming pool and related landscaping.

Pre-conditions to the grant of consent

6. I accept the Council’s assessment that the site is suitable for the development pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), as the application has sought consent for Category 1 Remediation Work and is accompanied by a Remediation Action Plan prepared by GSNE Services Pty Ltd dated 30 April 2025 (RAP). The RAP and its recommendations have been incorporated into the conditions of consent at Annexure A.

7. Chapter 2 of SEPP Resilience and Hazards applies to the site at s 2.3. I accept the Council’s assessment that the proposal is not likely to cause increased risk of coastal hazards on that land or other land pursuant to s 2.12, and that the matters under Ch 2 have been adequately considered.

8. The site is zoned R3 Medium Density Residential pursuant to the Canada Bay Local Environmental Plan 2013 (LEP 2013) and the proposal is permissible with consent. The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

9. The site is identified as a heritage item under Sch 5 to LEP 2013013 (I382 – AGL Blacksmiths’ Shop (former)). The site is also located in the vicinity of other heritage listed items. The application is accompanied by a Heritage Impact Statement prepared by Weir Phillips Heritage dated April 2025 which confirms that the application, as amended, does not have an unacceptable impact on the heritage significance of the item or the items in the vicinity. The application includes a Schedule of Works prepared by Weir Phillips Heritage. I have considered the effect of the proposal on the heritage significance of the item, pursuant to cl 5.10(4) and I am satisfied that the proposal’s impact on the heritage significance of the item is satisfactory.

10. The site is identified as being affected by Class 2 Acid Sulfate Soils on the Acid Sulfate Soils Map. As the works involve the disturbance of more than 1 tonne of soil, an Acid Sulfate Soils Management Plan (ASS Management Plan) has been prepared in accordance with the Acid Sulfate Soils Manual. I am satisfied that cl 6.1 of LEP 2013 has been adequately addressed.

11. The application is accompanied by a Geotechnical Investigation Report, ASS Management Plan and Remediation Action Plan. I am satisfied that the matters set out under cl 6.2 of LEP 2013 have been considered, that appropriate measures to avoid or minimise the impacts of the development have been imposed, and that the application is suitable, subject to the conditions at Annexure A.

12. A portion of the rear of the site is identified as being within the Foreshore Area on the Foreshore Building Line Map. The proposed footprint in this area is permissible pursuant to clause 6.5(3) of LEP 2013. The development otherwise achieves the objectives of the zone, is compatible with the surrounding area, will not cause environmental harm, will not cause congestion, will not impact public access to the waterway, and will not adversely impact heritage significance. I am satisfied that cl 6.4 of LEP 2013 has been adequately addressed.

Conclusion

13. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 8 July 2025 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.

Orders

14. The orders of the Court are:

15. The appeal is upheld.

16. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed sum of ($10,000) within 14 days of the date of this order.

17. Development Application No. 2024/0072 for alterations and additions to the former Blacksmith’s shop to create a new dwelling house, at 123 Peninsula Drive, Breakfast Point, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O'Neill

Commissioner of the Court

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Annexure A (439 KB, pdf)