Griffin v City of Canada Bay Council

Category: Principal judgment

Parties: Gabrielle Lee Griffin (Applicant)
City of Canada Bay Council (Respondent)

Representation: Counsel:
S Griffiths (Solicitor)(Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/137444

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Gabrielle Lee Griffin (the Applicant) against the refusal of Development Application No 2025/0009, lodged with the City of Canada Bay Council (the Respondent), on 22 January 2025. The respondent issued a notice of refusal on 17 March 2025.

2. The Development Application seeks Development Consent for the demolition of existing structures and the construction alterations and additions, including a new first floor, to the existing dwelling. The proposed development is to take place at 14 Mons Street, Russell Lea, NSW 2046. The proposed development is on land legally described as Lot 25 in DP 13664.

3. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the of the Land and Environment Court Act 1979 (NSW) (LEC Act). The conciliation conference commenced on 12 August 2025.

4. At the conciliation conference the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the development application subject to agreed outcomes and conditions.

5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following:

8. Pursuant to the Canada Bay Local Environmental Plan 2013 (CBLEP), the subject site is zoned R2 Low Density Residential. Regard has been given to the R2 zone objectives in determining the application.

Heritage Conservation

2. Pursuant to cl 5.10(4) of the CBLEP, the site is within a Heritage Conservation Area. The consent authority is required to consider the effect of the proposed development on the heritage significance of the area. The parties agree that the amendment to the plans results in the proposal having an acceptable impact on the items in the conservation area.

Acid Sulfate Soils

3. Pursuant to cl 6.1 of the CBLEP ‘Acid Sulfate soils’, the consent authority is required to consider any potential acid sulfate soils affectation that might disturb, expose or drain acid sulphate soils and cause environmental damage. The parties agree that the Site is located within a Class 5 area as specified in the Acid Sulfate Soils Map. The parties agree, and I am satisfied, that the proposal meets the requirements of cl 6.1 of the CBLEP as development consent is not required pursuant to this clause.

Earthworks

4. Clause 6.2 of the CBLEP requires consideration of proposed earthworks. The proposal provides for only minor excavation associated with the development. The parties agree that the works are minor and that the requirements of cl 6.2(3) of the CBLEP have been met. The Court is also satisfied that the required matters have been considered.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

5. The site is located within the Sydney Harbour Catchment pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021. The parties have undertaken the required assessments in respect to the proposed development and consider the development satisfactory. I agree that the required matters have been considered.

State Environmental Planning Policy (Sustainable Buildings) 2022

6. A BASIX certificate has been prepared for the purpose of the amended plans. The parties are satisfied, as am I, that the requirements for sustainability have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

7. As required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021, consideration has been given to whether the site is contaminated. The parties agree that the site has been used for residential purposes for a number of years and is therefore unlikely to be contaminated. The proposed use of the land is to remain residential. The parties agree, and I am satisfied, that the required considerations have been undertaken.

8. The proposal was notified from 23 January 2025 to 6 February 2025. No submissions were received.

9. 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’ agreement.

10. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

11. The Court notes that:

12. The City of Canada Bay Council, as the relevant consent authority, has agreed, under ss 38(1) and (4) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application and supporting documents, the subject of these proceedings, and therefore relying on the documents below:

| Architectural plans (Revision C) prepared by Cad Draft Pty Ltd, dated 25 August 2025: a) Drawing No. A100 – Cover Sheet b) Drawing No. A101 – Mood Board c) Drawing No. A102 – BASIX d) Drawing No. A103 – Site / Roof Analysis Plan e) Drawing No. A104 – Ground Floor Plan Exiting f) Drawing No. A104A – Roof Plan – Demolition g) Drawing No. A104B – Ground Floor Demolition Plan h) Drawing No. A104C – Northern & Eastern Elevation – Demolition i) Drawing No. A104D – Western Elevation – Demolition j) Drawing No. A105 – East & West Elevations Existing k) Drawing No. A106 – North & South Elevations Existing l) Drawing No. A107 – Ground Floor Plan Proposed m) Drawing No. A108 – First Floor Plan Proposed n) Drawing No. A109 – North & South Elevations Proposed o) Drawing No. A110 – West Elevation Proposed p) Drawing No. A111 – East Elevation Proposed q) Drawing No. A112 – Sections 1 & 2 r) Drawing No. A113 – FSR Calculations s) Drawing No. A114 – External Materials & Finishes t) Drawing No. A115 – Shadows June 21st 9.00am u) Drawing No. A116 – Shadows June 21st 12.00pm v) Drawing No. A117 – Shadows June 21st 3.00pm w) Drawing No. A118 – 3D Sun Views June 21st 9.00am x) Drawing No. A119 – 3D Sun Views June 21st 10.00am y) Drawing No. A120 – 3D Sun Views June 21st 11.00am z) Drawing No. A121 – 3D Sun Views June 21st 12.00pm aa) Drawing No. A122 – 3D Sun Views June 21st 1.00pm ab) Drawing No. A123 – 3D Sun Views June 21st 2.00pm ac) Drawing No. A124 – 3D Sun Views June 21st 3.00pm ad) Drawing No. A125 – Drainage Plan ae) Drawing No. A126 – Waste Management / Sediment Erosion Plan af) Drawing No. A127 – Roof Plan – Current Building Fabric ag) Drawing No. A128 – Ground Floor – Current Building Fabric ah) Drawing No. A129 – Eastern & Northern Elevations – Current Fabric ai) Drawing No. A130 – West & Southern Elevations Current Fabric |

Orders

12. The Court Orders that:

13. The appeal is upheld.

14. Development consent is granted to development application number DA2025/0009, as amended, for alterations and additions to the existing dwelling house, including a first floor addition, on land identified as Lot 25 in Deposited Plan 13664 and known as 14 Mons Street, Russell Lea subject to the conditions of consent at Annexure A.

S Harding

Acting Commissioner of the Court

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Annexure A .376 KB.pdf