Itaoui v Wollongong City Council [2020] NSWLEC 1260 | Case summary

Land and Environment Court (NSW)|2020-05-06

The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The Appeal is upheld. 3. Development Application DA-2019/36 for the use of an existing residential building and the use of an existing building for horse stables on land known as 750 Princes Highway, Darkes Forest, is approved subject to the conditions of consent set out at Annexure 'A'.

Proceedings 2019/103571 (Secondary dwelling development appeal)

The Court orders that: 1. The Applicant is granted leave to amend Development Application DA-2019/35 and to rely upon the following amended plans and documents: Architectural Plans prepared by ES Engineering dated 25 March 2020, Issue J: Drawing 18164-701, Proposed site location plan Drawing 18164-702, Site plan Drawing 18164-703, Secondary Dwelling (Lakehouse) Proposed floor plan Drawing 18164-704, Secondary Dwelling (Lakehouse) Elevations Drawing 18164-705, Secondary Dwelling (Lakehouse) Section view Drawing 18164-706, Secondary Dwelling (Lakehouse) Proposed Floor Plan Drawing 18164-707, Rainwater tanks / pump shed floor plan

Landscape Plans prepared by Site Design & Studios dated 23 April 2020, Issue J: Drawing L-01, Landscape masterplan secondary dwelling (lakehouse) Drawing L-02, Detail plan secondary dwelling secondary dwelling (lakehouse) Drawing L-03, Planting details

Stormwater and Wastewater Plans prepared by Martens dated 18 February 2020 Concept Stormwater Management Plan, Map 04 Onsite Wastewater Management Plan, Map 05 Additional Documents Onsite Wastewater Management report prepared by Martens dated 4 March 2020 BCA Assessment Report prepared by Building Innovations Australia (Building E) dated 11 December 2019 Vegetation Management Plan prepared by Cumberland Ecology dated 18 February 2020 Flora & Fauna Assessment prepared by Cumberland Ecology (v003, Final v2) dated 18 February 2020 Detailed Environmental Site Assessment prepared by Environmental Consulting Services dated 18 February 2020.

The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The Appeal is upheld. 3. Development Application DA-2019/35 for the use of an existing structure as a secondary dwelling on land known as 750 Princes Highway, Darkes Forest, is approved subject to the conditions of consent set out at Annexure 'A'.

Proceedings 2019/106545 (Rural supplies building development appeal)

The Court orders that: 1. The Applicant is granted leave to amend Development Application DA-2019/37 and to rely upon the following amended plans and documents: Architectural Plans prepared by ES Engineering dated 25 March 2020, Issue J: Drawing 18164-501, Proposed site location plan Drawing 18164-502, Site plan Drawing 18164-503, Rural Supplies Building Existing Floor Plan Drawing 18164-504, Rural Supplies Building Proposed floor plan Drawing 18164-505, Rural Supplies Building Elevations Drawing 18164-506, Rural Supplies Building Schedule of colours and sections Drawing 18164-506A, Rural Supplies Building Gross Floor Area Calculation Plan Drawing 18164-512, Proposed front fence and signage pole details Drawing 18164-513, Streetscape elevation plan

Landscape Plans prepared by Site Design & Studios dated 23 April 2020, Issue J: Drawing L-01, Landscape masterplan Drawing L-02, Detail plan rural supplies Drawing L-03, Planting details

Stormwater and Wastewater Plans prepared by Martens dated 18 February 2020 Concept Stormwater Management Plan, Map 04 Onsite Wastewater Management Plan, Map 05 Additional Documents Onsite Wastewater Management report prepared by Martens dated 4 March 2020 BCA Assessment Report prepared by Building Innovations Australia (Building C) dated 11 December 2019 Flora & Fauna Assessment prepared by Cumberland Ecology (v003, Final v2) dated 18 February 2020 Detailed Environmental Site Assessment prepared by Environmental Consulting Services dated 18 February 2020 Plan of Management (Rural Supplies) prepared by Ali Hammoud of Planzone dated 18 February 2020

The Applicant is to pay the Respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The Appeal is upheld. 3. Development Application DA-2019/37 for the change of use of a secondary dwelling building to a rural supplies and sales building including alterations and additions and construction of a new rural supplies storage building over existing concrete slab on land known as 750 Princes Highway, Darkes Forest, is approved subject to the conditions of consent set out at Annexure 'A'.

Proceedings 2019/381640 (Building information certificate appeal for the rural supplies building)

The Court orders that: 1. The Applicant is granted leave to amend the Building Certificate Application Number BC-2019/64 to rely upon the following documents: 1. Drawing 18164-109 - 18164-111, Schedule of proposed compliance upgrades, prepared by ES Engineering dated 11 February 2020; and 2. BCA Assessment Report prepared by Building Innovations Australia (Building C) dated 11 December 2019. 1. The Appeal is upheld. 2. The Applicant is to comply with conditions 2 and 6 of DA-2019/37 ("Consent") within 6 months of the date of these Orders. 3. The Applicant is to provide certification to the Respondent that the works required by order (3) have been completed in accordance with the Consent within 6 months of the date of these Orders. 4. The Applicant is to provide certification by a suitably qualified consultant to the Respondent of the matters listed in Annexure A. 5. Within 14 days of the Applicant complying with orders (3), (4) and (5), the Respondent is directed to issue a building information certificate (NCC-BCA Class 5 "Office" & 6 "Retail") for the building the subject of Building Information Certificate Application Number BC-2019/64. 6. The Applicant is to make the building available for inspection by the Respondent's authorised officers and consultants within 7 days of compliance with orders (3), (4) and (5). 7. Liberty to apply to extend the time for compliance with orders (3) and (4) in the event that there is a delay by the Respondent in issuing the section 68 approvals as required by DA-2019/37.

Proceedings 2019/381659 (Building information certificate appeal for the primary dwelling and stables)

The Court orders that: 1. The Applicant is granted leave to amend the Building Certificate Application Number BC-2019/66 to rely upon the following documents: 1. Drawing numbers 18164-209 - 18164-211, Schedule of proposed compliance upgrades, prepared by ES Engineering dated 11 February 2020; and 2. BCA Assessment Report prepared by Building Innovations Australia (Building C) dated 11 December 2019. 1. The Appeal is upheld. 2. The Applicant is to comply with Condition 3 and 7 of DA-2019/36 ("Consent") within 6 months of the date of these Orders. 3. The Applicant is to provide certification to the Respondent that the works required by order (3) have been completed in accordance with the Consent within 6 months of the date of these Orders. 4. The Applicant is to provide certification by a suitably qualified consultant to the Respondent of the matters listed in Annexure A. 5. Within 14 days of the Applicant complying with orders (3), (4) and (5), the Respondent is directed to issue a building information certificate (Primary Dwelling: NCC-BCA Class 1a) (Stables: NCC-BCA Class 7b "farm shed" and subject to further evidence) for the building the subject of the Building Information Certificate Application Number BC-2019/66. 6. The Applicant is to make the building available for inspection by the Respondent's authorised officers and consultants within 7 days of compliance with orders (3), (4) and (5). 7. Liberty to apply to extend the time for compliance with orders (3) and (4) in the event that there is a delay by the Respondent in issuing the section 68 approvals as required by DA-2019/36.

Proceedings 2019/381676 (Building information certificate appeal for the secondary dwelling)

The Court orders that: 1. The Applicant is granted leave to amend the Building Certificate Application number BC-2019/65 to rely upon the following documents: 1. Drawings 18164-306 - 18164-308, Schedule of proposed compliance upgrades, Issue E, prepared by ES Engineering dated 11 February 2020; and 2. BCA Assessment Report prepared by Building Innovations Australia (Building E) dated 11 December 2019. 1. The Appeal is upheld. 2. The Applicant is to comply with condition 3 and 7 of DA-2019/35 ("Consent") within 6 months of the date of these Orders. 3. The Applicant is to provide certification to the Respondent that the works required by order (3) have been completed in accordance with the Consent within 6 months of the date of these Orders. 4. The Applicant is to provide certification by a suitably qualified consultant to the Respondent of the matters listed in Annexure A. 5. Within 14 days of the Applicant complying with orders (3), (4) and (5), the Respondent is directed to issue a building information certificate (NCC-BCA Class 1a) for the building the subject of Building Information Certificate Application Number BC-2019/65. 6. The Applicant is to make the building available for inspection by the Respondent's authorised officers and consultants within 7 days of compliance with orders (3), (4) and (5). 7. Liberty to apply to extend the time for compliance with orders (3) and (4) in the event that there is a delay by the Respondent in issuing the section 68 approvals as required by DA-2019/35.

Commissioner of the Court Proceedings 2019/103570 Annexure A (268185, pdf) Proceedings 2019/103571 Annexure A (233697, pdf) Proceedings 2019/106545 Annexure A (239493, pdf) Proceedings 2019/381640 Annexure A (115521, pdf) Proceedings 2019/381659 Annexure A (114343, pdf) Proceedings 2019/381676 Annexure A (108994, pdf)

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: 18 June 2020

Whether each of the proceedings can be disposed of in accordance with the agreements

As the presiding Commissioner, I am satisfied that the decisions to grant development consent in each of the development appeals, subject to conditions of consent, are decisions 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). I form this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

Whilst the site has split zoning across the RU2 Rural Landscape and E2 Environmental Conservation zones pursuant to the Wollongong Local Environmental Plan 2009 ("WLEP 2009"), the development applications are for works and uses within the RU2 zone, in which development for the purpose of dwelling houses, secondary dwellings and rural supplies are all uses that are nominated as permissible with development consent. The horse stables are for the use of the residents of the dwelling and the secondary dwelling. I am therefore satisfied that the development in each of the development appeals is for the purposes of a permissible use.
None of the three proposed developments breach any development standards that arise pursuant to the WLEP 2009 or any other applicable environmental planning instrument.
The secondary dwelling complies with the permissible gross floor area ("GFA") permitted by cl 5.4(9) of the WLEP 2009, based on the primary dwelling size of 349.5m2 as permitted by the existing development consent DA2014/1541. Clause 5.4(9) therefore allows the secondary dwelling to have a GFA of up to 234m2, with which the proposed secondary dwelling complies (with a GFA of 145.7m2).
Each development consent includes conditions of consent that require works to be undertaken to the structures to ensure compliance with the BCA.
An Endangered Ecological Community ("EEC") exists on the site. The proposed developments do not require removal of the EEC and propose clearing of vegetation in an amount below the threshold to require a Biodiversity Development Assessment Report under the Biodiversity Conservation Regulation 2017, as set out in the Flora and Fauna Assessment prepared by Cumberland Ecology dated 18 February 2020.
The site is suitable for the proposed use in accordance with State Environmental Planning Policy No 55 - Remediation of Land. The applicant has provided a Detailed Environmental Site Assessment prepared by Environmental Consulting Services dated 18 February 2020 which confirms that the site is suitable for the proposed uses.
Clause 5.10 of the WLEP 2009 does not preclude the grant of development consent in the development appeals, as an Aboriginal Objects Due Diligence Assessment prepared by Urbis dated 12 November 2019 confirmed that no further archaeological investigations are necessary for the site as no Aboriginal objects, relics and/or site, nor any landscape features with potential for Aboriginal objects were identified.
A BASIX certificate has been issued for the primary and secondary dwellings pursuant to the terms of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
Further, with respect to previous consents granted and to ensure that the site will not be used for multi-dwelling housing (which is a prohibited use in the zone): 1. With respect to the development consent to be granted for the primary dwelling and stables, development consent DA2014/1541 was previously granted in relation to the construction of, and use, of the structures erected upon the site. A condition to be imposed on the consent for the primary dwelling and stables (proceedings 2019/103570) requires the surrender of that Development Consent DA 2014/1541 prior to an occupation certificate being issued for the primary dwelling and stables. 2. With respect to the development consent to be granted for the secondary dwelling, the site benefits from an existing approval for a secondary dwelling. A condition to be imposed on the consent for the secondary dwelling (proceedings 2019/103571) will require the surrender of that Development Consent DA 2014/1541 prior to an occupation certificate being issued for the secondary dwelling, to ensure that the site will not contain two secondary dwellings. 3. With respect to the development consent to be granted for the rural supplies building, development consent DA2014/1541 was previously granted in relation to the construction of, and use, of a secondary dwelling, which is the structure the subject of this development application. A condition to be imposed on the consent for the rural supplies building will require the surrender of that development consent DA 2014/1541 prior to an occupation certificate being issued for the rural supplies store.
In exercising the functions of the consent authority, the Court has the power to impose the agreed conditions of consent in each matter, pursuant to ss 4.16(1) and 4.17 of the EPA Act.

Similarly, I am satisfied that the decisions to direct the Council to issue building information certificates upon the carrying out of the remedial works and the installation of on-site sewage management systems are decisions that the Court can make in the proper exercise of its functions. I form this state of satisfaction as these decisions fall within the broad power of the Court set out in s 8.25(3) of the EPA Act to "direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit" (at (a)), and "make any other order that it considers appropriate" (at (c)).
I also consider that the grant of liberty to apply is appropriate in circumstances where compliance with the orders could be delayed if there is any delay in the Council's approval of the application under s 68 of the Local Government Act 1993. As outlined by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206 at 210, "In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order." The exercise of liberty to apply requires notice to be given to the other party, usually in the form of a Notice of Motion (see, for example, Owners of Strata Plan 60693 v Anneliese Pty Limited [2006] NSWSC 210 at [8]-[10]).

Itaoui v Wollongong City Council

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