Nguyen v City of Canada Bay Council

Texts Cited: City of Canada Bay Council Community Participation Plan 2019

Category: Principal judgment

Parties: Van Dung Nguyen (Applicant)
City of Canada Bay Council (Respondent)

Representation: Counsel:
J Smith (Applicant)
S Patterson (Solicitor)(Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/450432

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by City of Canada Bay Council of DA2024/0121 (DA). The DA as amended seeks development consent for the demolition of an existing dwelling and the construction of a new two storey dwelling with basement car lift, swimming pool and associated earthworks (Proposed Development), at 49 Nield Avenue, Rodd Point also known as Lot C in Deposited Plan 401510 (Site).

2. The Court arranged a conciliation conference under s 34AA(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, at which I presided on 19 June 2025.

3. One objector made a prior submission on the original application. The objector was advised of the conference but did not attend. Their concerns pertained to geotechnical issues, misleading submission information, height breach, boundary fence, privacy and front setback.

4. During the conference, the parties agreed to the Applicants’ amendments to the architectural plans, landscape plans, stormwater plans and associated documentation to address Councils contentions. Pursuant to s 38 (1) of the Environmental Planning and Assessment Regulation 2021, the Respondent, City of Canada Bay Council, as the relevant consent authority, has approved the Applicant amending Development Application DA2024/0121 to rely on the documents listed below:

| Architectural Plans | | Drawing No | Revision Number | Plan Title | Drawn by | Dated | | DA1000 | 04 | Site Plan/Site Analysis Plan | SRH Architecture | 16 June 2025 | | DA1001 | 04 | Location Plan/Front Setback Study | SRH Architecture | 16 June 2025 | | DA1500 | 03 | Demolition Plan | SRH Architecture | 16 June 2025 | | DA2000 | 05 | Basement Plan | SRH Architecture | 16 June 2025 | | DA2050 | 03 | Flood Storage Plan | SRH Architecture | 16 June 2025 | | DA2100 | 05 | Level 1 Plan | SRH Architecture | 16 June 2025 | | DA2101 | 05 | Level 2 Plan | SRH Architecture | 16 June 2025 | | DA2102 | 04 | Roof Plan | SRH Architecture | 16 June 2025 | | DA3100 | 04 | Elevations | SRH Architecture | 16 June 2025 | | DA3101 | 05 | Elevations | SRH Architecture | 16 June 2025 | | DA3200 | 04 | Sections | SRH Architecture | 16 June 2025 | | DA3201 | 04 | Sections | SRH Architecture | 16 June 2025 | | DA4000 | 04 | Material Board | SRH Architecture | 16 June 2025 | | Landscape Plans | | LP01- 0624 | E | Site Plan | Tanya Wood Landscape Architecture | 27/05/2025 | | LP02- 0624 | E | Landscape Plan – Ground | Tanya Wood Landscape Architecture | 27/05/2025 | | LP03- 0624 | E | Landscape Plan – Level 1 | Tanya Wood Landscape Architecture | 27/05/2025 | | Stormwater Plans | | 2000315-STW-000 | P7 | Stormwater Service Cover Sheet | Torinex Consulting Engineers | 20 May 2025 | | 2000315-STW-101 | P7 | Stormwater Management Basement | Torinex Consulting Engineers | 20 May 2025 | | 2000315-STW-102 | P7 | Stormwater Management Ground Floor | Torinex Consulting Engineers | 20 May 2025 | | 2000315-STW-103 | P7 | Stormwater Management First Floor | Torinex Consulting Engineers | 20 May 2025 | | 2000315-STW-104 | P7 | Stormwater Management Roof | Torinex Consulting Engineers | 20 May 2025 | | 2000315-STW-301 | P7 | Stormwater Services Typical Details | Torinex Consulting Engineers | 20 May 2025 | | 2000315-STW-302 | P7 | Stormwater Services Pumpout Pit Details | Torinex Consulting Engineers | 20 May 2025 | | 2000315-STW-304 | P7 | Stormwater Services OSD Calculations | Torinex Consulting Engineers | 20 May 2025 | | Documents | | P3224_03 | 0 | Groundwater Take Assessment | Morrow Geotechnics | 28 February 2025 | | 1750211S_02 | - | BASIX Certificate | Outsource Ideas Pty Ltd | 17 June 2025 | | | | Clause 4.6 FSR | Thinks Planners | 3 June 2025 |

5. The Court notes that this list of amended plans and documents is included in the final consent conditions in Annexure A.

6. On the 19 June 2025, the parties submitted an agreement as to the terms of a decision that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended Development Application, subject to conditions in Annexure A.

7. 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.

8. The parties’ decision involves the Court exercising power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The signed agreement is supported by a Jurisdictional Statement from the parties and was explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [23], as follows:

Jurisdictional Prerequisites

Owners Consent

9. The Applicant for the DA in the proceedings is Van Dung Nguyen who jointly owns the property with Minh Nguyet Kieu. Owner’s consent is included in the Class 1 application filed with the Court.

Public Notification

10. The DA was notified in accordance with the requirements of the City of Canada Bay Council Community Participation Plan from 5 July 2024 to 26 July 2024. One submission was received. The objectors were also subsequently notified about the amendments to the Development Application by City of Canada Bay Council.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP)

11. Clause 4.6 requires that the consent authority must not grant consent to any development on land unless it has considered whether the site is contaminated or potentially contaminated land, and if it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. As identified by the Applicant in the Statement of Environmental Effects prepared by Think Planners (dated 6 May 2024) the Site has had a long history of residential use, with no known potentially contaminating activities being conducted on the site and there otherwise being no indication of potentially contaminated materials on the site.

12. The parties contend, and I accept in the Jurisdictional Statement that if any contaminated material is encountered during the construction stage, then actions consistent with the legislative requirements will be undertaken. Based on the above, I am satisfied that that requirements of the Resilience and Hazards SEPP have been met.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

13. The Site is located within the Sydney Harbour Catchment, but outside the Foreshores and Waterways Area and is subject to the provisions in Chapter 6 of the BC SEPP. The Sydney Harbour Catchment is a regulated catchment as defined in Schedule 6 of the BC SEPP.

14. Pursuant to clauses 6.6(2), 6.7(2), 6.8(2), 6.9(2) and 6.10(2) in Division 2 of Part 6.2 of the BC SEPP development consent must not be granted on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to:

(a) water quality and quantity; (b) aquatic ecology; (c) flooding; (d) recreation and public access; and (e) total catchment management.

15. The Applicant has prepared amended Stormwater Plans by Torinex Consulting Engineers (dated 20 May 2025) and provided DRAINS and MUSIC modelling inclusive of filtration and water quality measures. The parties agree and I accept the following:

16. Pursuant to clause 6.6(2), the stormwater plans for the Proposed Development ensure that:

(i) the effect on the quality of water entering a natural waterbody will be beneficial, noting the existing lack of filtration and other treatment mechanisms on the Site; and (ii) the impact on water flow in a natural waterbody will be minimised.

2. Pursuant to clause 6.7, that the Proposed Development:

(i) keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; (ii) will not have a direct, indirect or cumulative adverse impact on aquatic reserves; (iii) minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and (iv) minimises any adverse impact on wetlands.

3. Pursuant to clause 6.8 of the BC SEPP, the proposed development is unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (cl 6.8(1) of the BC SEPP). The Site is not located within the flood planning area and is not considered to be flood liable land for purposes of cl 6.8(2) of the BC SEPP.

4. Pursuant to clause 6.9 of the BC SEPP, the Proposed Development does not affect recreational land use or public access to and from foreshores or natural waterbodies given the Site’s location.

5. Pursuant to clause 6.10 of the BC SEPP, the Proposed Development is not likely to have an adverse environmental impact on any adjacent local government area.

6. Pursuant to Clause 6.11 of the BC SEPP, the Site is not within a natural waterbody.

7. Based on the above, I am satisfied that that requirements of the BC SEPP have been met.

State Environmental Planning Policy (Sustainable Buildings) 2022

17. The proposal is BASIX affected development and accordingly the standards set out in Sch 1 of State Environmental Planning Policy (Sustainable Buildings) 2022 apply. Pursuant to section 27 of the Environmental Planning and Assessment Regulation 2021 a BASIX certificate is required The Applicant has provided an updated BASIX Certificate (Document no. 1750211S_02, dated 17 June 2025). Additionally, Condition of Consent 25 in Annexure A, requires compliance with the BASIX Certificate.

Canada Bay Local Environmental Plan 2013 (CBLEP)

18. The parties agree and I accept that the relevant provisions of the CBLEP have been taken into consideration in assessment of the amended application. I note the following:

19. The Site is zoned R2 Low Density Residential under the CBLEP and ‘dwelling houses’ are permissible with consent. Pursuant to cl 2.3 the proposed development is consistent with the objectives of the R2 zone.

20. Pursuant to cl 2.7, demolition is permissible with consent.

21. Pursuant to cl 4.3, the prescribed maximum height control of 8.5 metres is applicable to the Site. The Proposed Development as amended by the Final Plans is below the maximum height of 8.5 metres. This is agreed in paragraph 2.2 in the Joint Report of Town Planning Experts Jonathan Wood and Edna Sorensen (Dated 5 June 2025).

22. Pursuant to cl 4.4, the CBLEP prescribes the maximum Floor Space Ratio (FSR) of 0.5:1. During the conference, the parties discussed the inclusion of the bin storage area in the basement (as defined in the CBLEP), and if it should be included in the calculation of the Gross Floor Area (GFA). This is depicted in blue outline in the image below.

23. (Source: Joint Expert Report Town Planning - Appendix D Clause 4.6 Variation (Dated 3 June 2025), Page 5).

24. The Applicant proposed that the FSR of the Proposed Development is 0.5:1 in circumstances where the basement would be excluded from the definition of GFA in its configuration. However, if the bin store were to be excluded as GFA (pursuant to the definition in the CBLEP) the FSR would be 0.516:1. Therefore it would create an exceedance and in those circumstances a Clause 4.6 request would be required. The Respondent was firmly of the opinion that a Clause 4.6 Request was necessary. The Applicant had prepared a Clause 4.6 Variation which was included as Annexure D in the Joint Report of Town Planning Experts Jonathan Wood and Edna Sorensen (dated 5 June 2025).

25. The Joint Experts state (page 9, at Paragraph 3.8) that the Clause 4.6 should be supported given that:

• It makes no contribution to bulk and scale being below ground;

• The raised FFL of the ground floor is necessary to achieve the required freeboard for flood purposes and the proposal has sought to achieve this FFL to the ground floor that would be necessary regardless of the basement and the built form would present in the same way;

• The inclusion of the basement area as GFA on a merit basis is not appropriate given the basement is designed as a traditional basement area and contained below the natural ground level on the site.

8. The Clause 4.6 Variation prepared by Think Planners (Dated 3 June 2025) demonstrated that:

(a) compliance with the development standards is unreasonable and unnecessary as the proposal, despite the numerical non-compliance identified, is consistent with the objectives of cl 4.4 – Floor Space Ratio of the CBLEP 2013. (b) sufficient environmental planning grounds to justify non-compliance with the development standards by demonstrating that the GFA in the basement is appropriate as it is located predominantly below ground, is not visible from the public domain, does not impact on the approved landscape/deep soil arrangements, and does not affect bulk and scale of the development. It largely arises on a technicality because of the flood affectation of the site. (c) the proposed development is in the public interest because it is consistent with the objectives of the FSR development standard (cl 4.4) and demonstrates suitable environmental planning grounds.

9. Pursuant to cl 5.10, the Site is not a heritage item, is not in a heritage conservation area and is not in the vicinity of any heritage items.
10. Pursuant to cl 5.21, the Site is not located within an area identified in the Flood Planning Area on the Flood Planning Map in the CBLEP. However, Council contended issues in relation to the objectives of cl 5.21(a) to (e) on the original development application. The amended plans and the Flood Impact Assessment Report (Dated 11 June 2025, Rev F, prepared by CATES Consulting Engineers) prepared by the Applicant have now considered and addressed issues of flooding in the Joint Report of Flooding Experts by Derek Yang and Stephen Chow (Dated 12 June 2025).
11. Pursuant to cl 6.1 the Site is mapped as Class 5 in the CBLEP Acid Sulfate Soils Map. An acid sulfate soils assessment and management plan prepared by Morrow Geotechnics Pty Ltd dated 21 June 2024. This management plan is required to be implemented in accordance with the Conditions of Consent in Annexure A.
12. Pursuant to cl 6.2, the consent authority is required to consider several matters when deciding to grant consent for earthworks. The Applicant prepared a geotechnical report by Morrow Geotechnics Pty Ltd dated 5 April 2024. The Respondent raised contentions pertaining to groundwater, and a Joint Experts Report (JER) on Geotechnical was prepared by Allan Morrow and Stephen Chow (dated 10 June 2025). The geotechnical experts agreed (JER, page 2) that the groundwater issues could be resolved by tanking the basement. This has been reflected in the engineering conditions in the Conditions of Consent in Annexure A.
13. Pursuant to cl 6.10, the Site is in a long-established urban area and previously contained a dwelling house. Requirements to essential services have been met as there are existing connections to all these services.

Conclusion

19. Based on Joint Expert Reports, Amended Plans, documents and Conditions of Consent, the parties agree, and I am satisfied that the Proposed Development can be approved taking into consideration the matters in s 4.15(1) of the EPA Act.

20. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

21. I have considered the jurisdictional prerequisites, 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.

22. 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.

Orders

23. The Court orders that:

24. The appeal is upheld.

25. The Clause 4.6 Statement prepared by Think Planners dated 3 June 2025 in respect of Floor Space Ratio is upheld.

26. Development Application DA2024/0121 for the demolition of existing structures and construction of a new two-storey dwelling with a basement, the installation of a car lift, swimming pool with associated earthworks and landscaping at 49 Nield Avenue, Rodd Point NSW 2046 is determined by the grant of consent subject to conditions contained in Annexure A.

L Coetzee

Acting Commissioner of the Court

450432.24 Annexure A (436 KB, pdf)

**********