Harris v Northern Beaches Council

Land and Environment Court (NSW)|2024-10-22

Judgment

COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the decision of Northern Beaches Council (Council) to refuse Development Application No DA 2022/1974 (DA). The DA, as amended, seeks consent for demolition works and construction of a two storey dwelling house, swimming pool and associated landscaping at Lot 2 DP 10683, with the street address of 84 Quirk Street Dee Why (site).
The Court arranged a conciliation conference between the parties under s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 21-22 October 2024, at which I presided. In the course of the conciliation the parties came to an 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 DA, as amended, subject to conditions.

Pre-requisites to the exercise of the function to grant development consent

Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.
The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed jurisdictional note received on 22 October 2024.

State Environmental Planning Policy (Resilience and Hazards) 2021

I accept the advice of the parties that the site has previously been used for residential purposes and that there is no likelihood of contamination. The requirements of s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 are satisfied.

State Environmental Planning Policy (Transport and Infrastructure) 2021

The parties advise that, in accordance with requirements of s 2.48(2), the development application was notified to Ausgrid. I accept the advice in the jurisdictional statement that Ausgrid raised no objections to the proposal, subject to compliance with the relevant standards and codes of practice. The parties advise that a condition of consent accommodates the Ausgrid response.

Warringah Local Environmental Plan 2011

The site is zoned R2 Low Density Residential and there is no dispute that the proposed dwelling and associated landscaping is permissible with consent in the zone. I have considered the zone objectives. Demolition is permissible under cl 2.7.
I accept the advice of the parties that the proposal does not breach any development standards under Warringah Local Environmental Plan 2011 (WLEP).
The parties jurisdictional statement gives attention to cl 6.2 (earthworks). While this clause does not require a positive jurisdictional finding on the part of the court, I note the parties advise the attention given to the relevant considerations.
The parties advise that cl 6.4 (development on sloping land) is triggered. The parties advise of the provision of specialist geotechnical reports in regard to this topic. I also note that each of the three matters requiring positive findings of satisfaction with respect to cl 6.4(3) have been directly addressed in the Council officer's development assessment report which was provided in Council's bundle of documents filed with the Court on 14 October 2024 (Tab 3 pp 37-38). I accept the analysis included in the Council assessment report, and the fact of the agreed consent conditions relating to geotechnical and stormwater management requirements, and can find that I am satisfied that: 1. the application for development has been assessed for the risk associated with landslides in relation to both property and life, and 2. the development will not cause significant detrimental impacts because of stormwater discharge from the development site, and 3. the development will not impact on or affect the existing subsurface flow conditions.

Other considerations

I note the advice of Council that the development application was notified in accordance with requirements and that nine submissions were received during the notification period. I also had the opportunity to hear from a number of objectors during the site inspection on 21 October 2024, and to observe from within the residences of a number of objectors. It is clear to me that the objecting submissions have been taken into consideration, which is the extent of the jurisdictional test under s 4.15(1)(d) of the EPA Act.

Conclusion

With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.

Notation

The Court notes that: 1. Northern Beaches Council, as the relevant consent authority, has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021 the amendment of DA2022/1974 to incorporate the documents listed below: Amended Architectural Plans Plan name Drawing ref Revision Date Prepared by Cover sheet DA.00 N/A N/A Pieter Henry Architect Site analysis plan DA.01 C3 22 October 2024 Pieter Henry Architect Demolition plan DA.02 C3 22 October 2024 Pieter Henry Architect Bushey Place Level DA.03 C3 22 October 2024 Pieter Henry Architect Quirk Street Level DA.04 C3 22 October 2024 Pieter Henry Architect First Floor plan DA.05 C3 22 October 2024 Pieter Henry Architect Roof plan DA.06 C3 22 October 2024 Pieter Henry Architect Elevations DA.07 C3 22 October 2024 Pieter Henry Architect Section DA.08 C3 22 October 2024 Pieter Henry Architect Shadow diagrams DA.09 C3 22 October 2024 Pieter Henry Architect Window schedules DA.10 C3 22 October 2024 Pieter Henry Architect Door schedules DA.11 C3 22 October 2024 Pieter Henry Architect Landscape area DA.14 C3 22 October 2024 Pieter Henry Architect Landscape plan DA.15 C3 22 October 2024 Pieter Henry Architect Material finishes DA.16 C3 22 October 2024 Pieter Henry Architect Report Name Date Prepared by Visual Impact Study 17 October 2024 CMS Surveyors Amended estimated development cost report and cost summary report 18 October 2024 Pieter Henry

Orders

The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application DA2022/1974 for demolition works and construction of a two storey dwelling house, swimming pool and associated landscaping at Lot 2 DP 10683 located at 84 Quirk Street, Dee Why subject to conditions at Annexure A.

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: 30 October 2024

(2023) 111 NSWLR 634

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Judgment (10 paragraphs)

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Cases Cited (2)