[2004] NSWLEC 140
HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411
Source
Original judgment source is linked above.
Catchwords
[2004] NSWLEC 140
HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411
Judgment (4 paragraphs)
[1]
Judgment
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 refusal of development application DA2023/0430 for demolition and construction of dwelling house, swimming pool and associated works (the Proposed Development) at 20 Cedar Street Lugarno legally described as Lot 1 in DP 237427 (the Site).
The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 9 and 10 September 2024. I presided over the conciliation conference.
At 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.
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. 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 that were originally in dispute between the parties.
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 Court, exercising the powers of the consent authority, must determine whether the relevant preconditions to consent are met: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16].
The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of cl 6.6 of the Georges River Local Environmental Plan 2021 (GRLEP) regarding development in a foreshore scenic protection area. The parties explained how the jurisdictional prerequisites have been satisfied in a Joint Jurisdictional Statement.
The Site is located within the R2 Low Density Residential zone pursuant to cl 2.2 of the GRLEP. Pursuant to cl 2.3 of the GRLEP, the Proposed Development, namely a dwelling house, is permissible in the R2 zone with consent.
The Applicants are the registered owners of the Site. The Proposed Development includes demolition of some encroaching structures over the adjoining reserve being land to which the Council is the registered owner. No written consent from the Council was provided in time and the parties submit that it is appropriate for Court to exercise its powers to grant owners consent. I am satisfied that the Court has the powers of the consent Authority to grant owners consent over the works on Council land to remove the encroachment: Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34].
Pursuant to cl 4.3(2) of the GRLEP, the maximum height of building (HOB) development standard for the Site is 9m pursuant to the HOB Map in the GRLEP. The Proposed Development has a maximum HOB of 8.83m at the point where the proposal is located above the existing swimming pool.
The maximum floor space ratio (FSR) development standard applicable to the Site under cl 4.4A(2) of the GRLEP is 0.5007:1 which equates to a gross floor area of (GFA) of 405.29m2. The Revision F architectural drawing No DA601 Calculations Plan provides for a gross floor area of 391.48m2 which is a complying FSR of 0.48:1.
The Site is mapped as Class 5 within the GRLEP Acid Sulfate Soils Map. Pursuant to cl 6.1(2) of the GRLEP, works below 5 AHD are not proposed and as such, compliance with this development standard is achieved.
The Site is located in an existing established residential area and already has access to all the essential services as required pursuant to cl 6.9 of the GRLEP.
The location of the Site is within a foreshore protection area and pursuant to cl 6.6(3) of the GRLEP the consent authority must be satisfied that the development would facilitate the following:
(a) the protection of the natural environment, including topography, rock formations, canopy vegetation or other significant vegetation,
(b) the avoidance or minimisation of the disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations,
(c) the maintenance and enhancement of native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors,
(d) the achievement of no net loss of significant vegetation or habitat,
(e) the avoidance of clearing steep slopes and facilitation of the stability of the land,
(f) the minimisation of the impact on the views and visual environment, including views to and from the Georges River, foreshore reserves, residential areas and public places,
(g) the minimisation of the height and bulk of the development by stepping the development to accommodate the fall in the land.
I am satisfied that the Proposed Development facilitates the matters listed in cl 6.6(3) of the GRLEP for the reasons provided by the parties as follows:
1. The Proposed Development protects the natural environment to the extent that there is minimisation of the cut and fill to the Site, the provision of new canopy trees and lack of impacts to the surrounding existing canopy trees.
2. The Proposed Development does not impact the remnant vegetation communities, habitat and threatened species and populations.
3. The Proposed Development enhances native vegetation on the Site through a landscape plan with native vegetation and results in a net increase in significant trees on the Site though the provision of the landscape plan. The proposed dwelling is located on the flat part of the Site and as a result avoids clearing the steep slopes and facilitates stability of the land.
4. The Proposed Development minimised the impacts on views and the visual environment through the use of a flat roof, landscaping and the provision of courtyard providing a break in the building. The proposal does not impact public view and the impacts on view from private areas has been assessed as acceptable having regard to the Tenacity planning principle (Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140) in accordance with the View Analysis, Prepared by EMK Architects, Plan No A0711, Revision A Dated 9 September 2024.
5. The Proposed Development is stepped at the front of the Site and is constructed on the flat part of the Site to minimise and follow the fall of the Site. The apparent level of visual bulk is consistent with what is envisaged within the relevant development controls.
Clause 6.12 of the GRLEP provides for landscaped areas in certain residential and conservation zones. The precondition in cl 6.12(4) to the grant of consent requires satisfaction that the development:
(a) allows for the establishment of appropriate plantings -
(i) that are of scale and density commensurate with the height, bulk and scale of the buildings to which the development relates, and
(ii) that will maintain and enhance the streetscape and the desired future character of the locality, and
(b) maintains privacy between dwellings, and
(c) does not adversely impact the health, condition and structure of existing trees, tree canopies and tree root systems on the land or adjacent land, and
(d) enables the establishment of indigenous vegetation and habitat for native fauna, and
(e) integrates with the existing vegetation to protect existing trees and natural landscape features such as rock outcrops, remnant bushland, habitats and natural watercourses.
I have reached the requisite state of satisfaction required by cl 6.12(4) of the GRLEP because the Proposed Development provides landscaping that integrates the development into the surrounding area, which results in a development that is consistent with landscaping in the streetscape and immediate locality. The proposal includes landscaping that enhances the streetscape and maintains suitable landscaping to provide privacy between the dwellings. The Applicant relies on Arboricultural Impact Assessment, prepared by Colin Curtis, dated 14 August 2024 which demonstrates that the development does not impact the health, condition and structure of existing trees. Indigenous vegetation is included in the landscape plan and therefore provides for habitat for native fauna. The proposal integrates the existing vegetation and lateral landscaping features.
Further, cl 6.12(5)(b) of the GRLEP requires that development consent must not be granted unless the 25% of the site area consists of landscaped area for dwelling houses in the Foreshore Scenic Protection Area. This results in a requirement of 202.25m2 of landscaped area on the Site. The Proposed Development provides for 255.95 m2 or 31.6% of the Site.
The Applicant relies on the Design Excellence Statement written by Emil Kucevic dated 10 September 2024 to satisfy the terms of cl 6.10 of the GRLEP. The amended plans provide for a high standard of design and utilise natural materials to integrate the design with the adjacent bushland. The external appearance of the building has been designed to improve the quality of the public domain by improving the amount of vegetation in the front setback and maintains the view corridors for the neighbouring properties.
The Site is not located in a heritage area and the has been designed to be consistent with the existing and desired future character. The Proposed Development maintains suitable visual separation form the neighbouring properties and has compliant setbacks. Visual bulk has been minimised and provides for a gap in the building to break up the apparent visual bulk. The HOB complies with the development standard. The environmental impacts including solar access and visual privacy on the adjoining properties have been addressed to minimise the impacts. The landscape design has been addressed above and the amended proposal provides for passive surveillance being consistent with the principles of crime prevention through environmental design.
The Applicant relies on Stormwater Management Plan, prepared by NY Civil Engineering, Revision D, dated 4 September 2024. The parties stormwater engineers prepared a Joint Expert Report where Mr Riad for the Applicant provides as follows with which Mr Azzi agrees:
"Updated Stormwater management plans (Issue C) have reflected the stormwater to discharge via a level spreader, perpendicular with the boundaries of the adjoining reserve, which will prevent scour/erosion of the development site and adjoining reserve.
Notation to be provided on CC stormwater plans to the effect that construction of the level spreader and scour protection measures are to be supervised and certified by consulting hydraulic engineer as to prevent soil erosion resulting from the proposed development. This may be imposed as a Condition of Consent."
The agreement of the stormwater experts and the updated Stormwater Management Plan provides the Court with evidence that the Proposed Development satisfies the terms of the jurisdictional prerequisites listed at cl 6.3(2) of the GRLEP. I conclude that I am satisfied that the Proposed Development:
1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and
2. includes, if practicable, on-site stormwater detention or retention to minimise stormwater runoff volumes and reduce the development's reliance on mains water, groundwater or river water, and
3. avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact, and
4. is designed to minimise the impact on public drainage systems.
Further, the Stormwater Management Plan, together with the conditions of consent, also satisfy the jurisdictional prerequisites provided in Chapter 6 titled Water Catchments, of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation). The Site is located within a regulated catchment being the Georges River Catchment, s 6.1(c) of the SEPP Biodiversity and Conservation and in deciding whether to grant development consent, matters relating to water quality and quantity, aquatic ecology, flooding, recreation and public access and total catchment management must be considered, ss 6.6 to 6.10 of the SEPP Biodiversity and Conservation.
The Proposed Development has been designed with incorporated stormwater capture, filtration and release measures to ensure a neutral effect on the nearest water body, and is further addressed by the agreed conditions 18 and 19. During the construction phase, water quality and sediment control measures will be in place to ensure there will be no adverse impact on the nearest water body (condition 37 and NY Civil Engineering Dwg No D8 (Sediment Control Plan)).
The Stormwater Management Plan demonstrates the impacts of the level spreader which is proposed in the western end of the Site. The purpose of the level spreader is to discharge stormwater captured and filtered on the Site and there is provision for a stabilised rock bed at the discharge point which will involve providing a 20mm aggregate in a concrete bed where natural soil is exposed. This will mitigate issues concerning erosion and will ensure the quality of water entering the water body. I am satisfied that the Proposed Development will have at least a near neutral effect on water quality and the impact on water flow will be minimised.
There are no trees proposed for removal and the water quality entering the nearest water body will not adversely affect any terrestrial, aquatic or migratory animals, vegetation or aquatic reserves. Further, the level spreader and sediment control plan referred to above will minimise the erosion of land and soil into the Georges River.
The Site is not flood liable for the purpose of s 6.8 of the SEPP Biodiversity and Conservation. Nevertheless, the measures in place in the stormwater management plans will ensure that pollutants will not have an adverse effect on the water quality entering the natural body.
Section 6.9 of the SEPP Biodiversity and Conservation concerns the likely impact of the Proposed Development on recreation areas and public access. Given the location of the Site, and the proposed stormwater arrangement, I am satisfied that public access to and from the Georges River will be maintained.
For the purpose of s 6.10 of the SEPP Biodiversity and Conservation, there are no downstream local government areas that the Proposed Development is likely to have an adverse impact on. Accordingly, no consultation is necessary.
As the Site is approximately 170m from the nearest water body, s 6.11 of the SEPP Biodiversity and Conservation does not apply.
Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires consideration of whether the Site is contaminated. The Site and broader area have a long history of use as a dwelling house and there is no known or likely potential of previous use of the Site that would give rise to the potential for contamination such that the Court can be satisfied that the land is suitable for the purpose for which the development is proposed to be carried out. This is also expressly stated in the Georges River Development Control Plan 2021, at Part 5.7 Character statement confirming historical uses of the locality.
By operation of s 4.2(1)(a) of the State Environmental Planning Policy (Sustainable Buildings) 2022, the Development Application is required to and is supported by BASIX Certificate No 1395944S, dated 20 July 2024, confirming that the Proposed Development passes the BASIX requirements. The provision of that BASIX Certificate satisfies the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021 and there is a condition of consent which requires the BASIX certificate to be updated to reflect the amended plans prior to the grant of the construction certificate (see SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66).
Council placed the Application on neighbour notification to adjoining and surrounding properties between 2 November 2023 to 23 November 2023. One submission was received during the notification period and one submission was received by Council on 25 January 2024. No objectors were present when the matter commenced on site on 9 September 2024.
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 as I have set out in this judgment.
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.
[2]
Notations:
The Court notes that Georges River Council, as the relevant consent authority, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending development application DA2023/0430 in accordance with the documents below:
1. Architectural Plans prepared by EMK Architects, Revision F, dated 10 September 2024 as follows:
1. DA0002 - Site Analysis Plan;
2. DA0006 - Demolition Plan;
3. DA0102 - Floor Plan - Ground;
4. DA0103 - Floor Plan - First Floor;
5. DA0104 - Roof Plan;
6. DA0109 - Driveway Crossover;
7. DA0202- Elevations - Sheet 1;
8. DA0203 - Elevations - Sheet 2;
9. DA0301 - Sections Sheet 1;
10. DA0302 - Sections Sheet 2;
11. DA0310 - Sections Sheet 3;
12. DA0601 - Calculation Plans;
13. DA0611 - Shadow Diagrams - Winter Solstice I;
14. DA0612 - Shadow Diagrams - Winter Solstice II;
15. DA0613 - Shadow Diagrams - Winter Solstice III;
16. DA0701 - Schedule of Colours and Finishes;
1. Stormwater Management Plan, prepared by NY Civil Engineering, Revision D, dated 4 September 2024 as follows;
1. D1 - Details, Notes and Legend;
2. D2 - Stormwater Management Plan;
3. D3 - Stormwater Management First Floor/Roof Plan;
4. D4 - Stormwater Details;
5. D5 - Stormwater Details;
6. D6 - Stormwater Details;
7. D7 - Sediment Control Plan;
8. D8 - Sediment Control Details
1. Landscape Plans, prepared Site Design and Studios, Revision G, dated 4 September 2024 as follows:
1. L01 - Cover Sheet;
2. L02 - Landscape Plan;
3. L03 - Planting Plan Ground Floor;
4. L04 - First Floor Plan;
5. L05 - Planting Details;
6. L06 - Existing Tree;
7. L07 - Notes;
8. L08 - Specification
1. Survey Plan prepared by ARP Registered Surveyors, reference number 1084 revision B dated 10 May 2024.
2. Arboricultural Impact Assessment, prepared by Colin Curtis, dated 14 August 2024.
3. View Analysis, Prepared by EMK Architects, Plan no A0711, Revision A Dated 9 September 2024.
4. Design Excellence Statement written by Emil Kucevic dated 10 September 2024.
[3]
Orders:
The Court orders:
1. Owners Consent of the Council is granted to DA2023/0430.
2. The appeal is upheld.
3. Development application number DA2023/0430, for the demolition of existing buildings and construction of a two-storey dwelling, swimming pool and related landscaping at Lot 1 in DP 237427, otherwise known as 20 Cedar Street Lugarno, is determined by the grant of development consent subject to the conditions in Annexure A.
[4]
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: 26 September 2024