COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of a residential development application DA2021/0253 seeking development consent for the demolition of existing structures and construction of an attached two (2) storey dual occupancy development with two (2) rear in-ground swimming pools, two (2) rear cabanas and front fencing including landscaping and engineering works, and proposed Torrens title subdivision (the Proposed Development) at 31 Caloola Crescent Beverley Hills NSW 2209, legally described as Lot 651 in Deposited Plan 13496 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 February 2022. I have presided over the conciliation conference.
The Proposed Development was amended pursuant to a Notice of Motion on 18 January 2022, and again during 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 upholding the appeal and granting development consent to the development application subject to conditions. The parties signed and filed an agreement pursuant to s 34 of the LEC Act on 1 February 2022. The most significant amendment to the Proposed Development is the deletion of Torrens title subdivision.
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 4.16 of the EPA Act to grant consent to the development application.
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 as set out in the Jurisdictional Statement annexed to the s 34 Agreement and including the terms of cl 4.6 of the Hurstville Local Environmental Plan 2012 (HLEP 2012) to vary a development standard.
The parties explained how the jurisdictional prerequisites have been satisfied and I summarise their explanation below.
The statutory controls of relevance to the development application are as follows:
1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP).
2. State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Vegetation SEPP).
3. State Environmental Planning Policy No. 55 - Remediation of Land (SEPP 55).
4. State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP).
5. Greater Metropolitan Regional Environmental Plan No 2- Georges River Catchment (GMRE)
6. HLEP 2012.
The owners of the Site signed the Development Application Form which is Document 1 attached to the Application Class 1 filed with the Court on 25 October 2021.
As the estimated cost of works exceeds $50,000.00 and the application includes a swimming pool with a volume of 40,000 litres or more, a BASIX Certificate is required pursuant to the BASIX SEPP. A Multi Dwelling BASIX Certificate has been lodged with the Amended Application pursuant to the Notice of Motion granted 18 January 2022, and BASIX certificate no. 1256345M dated 3 November 2021 is referred to in the proposed Condition of Consent number 12.
As the Proposed Development seeks consent for the removal of a tree, the provisions of the Vegetation SEPP apply. By reason of cl 8(1) of the Vegetation SEPP, an authority to clear vegetation is not required under that SEPP if it is clearing of a kind that is authorised relevantly under s 60O of the Local Land Services Act 2013. That section authorises clearing by a development consent under Pt 4 of the EPA Act. On that basis, the effect of the Vegetation SEPP is overcome in the present case due to the need for development consent under Pt 4 of the EPA Act. The removal of the tree is supported by Council subject to conditions, requiring the planting of a replacement tree as provided in proposed Condition of Consent number 27.
Clause 7 of SEPP 55 requires the consent authority to consider contamination and remediation prior to the determination of the development application. A review of the Site history indicates that the Site has been used for residential purposes for extended periods of time, and such uses and/or development are not typically associated with activities that would result in the contamination of the Site. The 1943 base‑map of Sixmaps, a copy of which is annexed to the s 34 Agreement, shows the Site within an area that is in the process of being developed for residential purposes, from cleared land (presumably farmland) without an industrial development in the locality. The Proposed Development does not include any change to the use of the land that would result in any concerns with respect to contamination. There is no indication of previous uses that would cause contamination. In this regard, there is no indication that the land is contaminated. The criterion of cl 7, SEPP 55 has been satisfied.
The Development Application was referred to Ausgrid on 20 July 2021, pursuant to cl 45(2) of the Infrastructure SEPP. No objection was received from Ausgrid.
As the Site is within the Georges River Catchment, the provisions of GMRE apply. Having regard to the proposed stormwater plans and proposed conditions of consent, the Council is satisfied that the Proposed Development has taken into account the relevant General Principles in cl 8 of GMRE and the Specific Planning Principles in cl 9 of GMRE.
As the development application was lodged prior to 8 October 2021 (being the date the Georges River Local Environmental Plan 2021 (GRLEP) was gazetted), the Proposed Development is to be assessed under the HLEP 2012 pursuant to the savings provision in cl 1.8A of GRLEP.
The Site is zoned' R2 Low Density Residential' under the HLEP 2012 and Dual Occupancy development is permissible in the R2 zone with consent.
Clause 4.1A of HLEP 2012 provides that the minimum lot size required for dual occupancy development is 650m2 (the Minimum Lot Size Development Standard). As the Site is 635.9m2, the Applicant relies on a written request pursuant to cl 4.6 of the HLEP 2012 justifying the contravention of the Minimum Lot Size Development Standard prepared by Chapman Planning Pty Ltd dated 15 December 2021 (Written Request).
The Council is satisfied that the Written Request has adequately addressed the matters required to be demonstrated by cl 4.6(3) and that the proposed development will be in the public interest because it is consistent with the objectives of the Development standard and the objectives for development within the R2 Zone. Under Planning Circular 20-002, the Planning Secretary's concurrence can be assumed as the contravention of the Development standard is less than 10%.
The Proposed Development complies with the height development standard in cl 4.3 of the HLEP and complies with the floor space ratio development standard in cl 4.4 of the HLEP.
Under cl 5.10 of the HLEP, the Site has not been identified as a heritage item and is not located in a heritage conservation area. In addition, under cl 5.21 of the HLEP, the Site has not been identified as flood affected and under cl 6.1 of the HLEP, the Site has not been identified as located within an area containing acid sulfate soils.
All essential services required under cl 6.7 of the HLEP are available to the Site.
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. I adopt the reasons given by the parties, and in addition I give my reasons in relation to upholding the cl 4.6 written request justifying the contravention of the minimum lot size development standard.
I have read and considered the Written Request and I am satisfied that the applicant's written request seeking to justify the contravention of the development standard in cl 4.1A of the HLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the HLEP, and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.
I have formed this state of satisfaction having considered the reasons provided in the Written Request that compliance with the Minimum Lot Size Development Standard is unreasonable or unnecessary in this particular case because the departure or contravention is minor representing only a 2%, and that a modest departure from a development standard is a basis upon which compliance with the standard can be seen to be unreasonable or unnecessary as acknowledged by the Court of Appeal in Fast Bucks v Byron Shire Council (1999) 103 LGERA 94; [1999] NSWCA 19. In addition, I am satisfied that the Written Request has demonstrated that compliance is unreasonable or unnecessary on the basis that the Proposed Development is consistent with the objective of the Minimum Lot Size Development Standard for the reasons set out in the Written Request. I have considered that sufficient environmental planning grounds to justify contravening the Minimum Lot Size Development standard have been demonstrated in the Written Request and I am satisfied that the Proposed Development is in the public interest because it is consistent with the objective of the Minimum Lot Size Development Standard and the objectives for development in the R2 - Low Density Residential zone in accordance with the planning assessment provided in the Written Request.
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.
The Court notes that:
1. Georges River Council (the Council) as the relevant consent authority has agreed, under cl 55 of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the development application DA 2021/0253 the subject of these proceedings as shown in the following amended plans and details:
Description Reference No. Date Rev Prepared by
Site Plan Job 21251 A01.03 21/01/2022 C Nemco Design Pty Ltd
Ground Floor Plan Job 21251 A02 21/01/2022 C Nemco Design Pty Ltd
First Floor Plan Job 21251 21/10/2022 C Nemco Design Pty Ltd
A03
Elevations Plans Job 21251 A04 and A05 21/01/2022 C Nemco Design Pty Ltd
Stormwater Plan C00, C02- C03 07/12/2021 D Nemco Design Pty Ltd
C01 21/01/2022 E
Landscape Plans Drawings 21-4598 LO1 and 21-4598 LO2 20/01/2022 B Zenith Landscape Designs
Written Request under Cl 4.6 HLEP relating to Lot Size 15/12/2021 Chapman Planning Pty Ltd
[2]
On 31 January 2022, the amended Application was lodged / published with the NSW Planning Portal ("the Portal") except for the Written Request under cl 4.6 HLEP dated 15 December 2021 relating to development standard set out in cl. 4.1A HLEP (Lot Size for Dual Occupancies) which was uploaded to the Portal on 1 February 2022.
2. On 31 January 2022, the Applicant filed with the Court a copy of the amended Application, except for the Written Request under cl 4.6 HLEP dated 15 December 2021 relating to the development standard set out in cl. 4.1A HLEP (Lot Size for Dual Occupancies), which had been filed with the Court as Annexure 2 to the Joint Town Planning report on 19 January 2022.
[3]
Orders
The Court orders that:
1. The Written Request under cl 4.6 HLEP dated 15 December 2021 relating to the development standard set out in cl. 4.1A HLEP (Lot Size for Dual Occupancies) is upheld.
2. The Appeal is upheld.
3. The application for demolition of existing structures and construction of an attached two (2) storey dual occupancy development with two (2) rear in-ground swimming pools, two (2) rear cabanas and front fencing, including landscaping and engineering works, is approved subject to the conditions set out in Annexure "A".
[4]
Commissioner of the Court
(Annexure A) (341241, pdf)
[5]
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: 08 February 2022