Tarabay v City of Canada Bay Council

Land and Environment Court (NSW)|2021-03-25

Judgment

COMMISSIONER: These proceedings relate to an appeal against the Respondent's ("Council") refusal of Development Application No. 2019/0119 which is seeking consent for the demolition of the existing dwelling and all ancillary structures and the construction of a two (2) storey dwelling with basement parking accessed from Market Street, new in-ground swimming pool and associated landscaping at 2 Gipps Street, Drummoyne ("the site"). The appeal, brought under s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act").
The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which has been held on 25 March 2021. I have presided over the conciliation conference.
There was no onsite view as the parties had already reached an agreement based on amended plans. The parties advised me they reached agreement under s 34(3) of the LEC Act, as to the terms of the decision in the proceedings that would be acceptable to the parties. This decision involved the preparation of an amendment known as Annexure B.
The agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works is specified in the agreed conditions of development consent annexed to the s 34 agreement was prepared in accordance with s 34(10) of the LEC Act was subsequently filed with the Court on 25 March 2021.
The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works and plans is specified in the agreed conditions of development consent annexed to the s 34 agreement.
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.

A. Background

Prior to the s34AA conciliation conference and hearing, the parties have had ongoing without prejudice discussions which resulted in the Applicant producing a set of amended architectural plans seeking to address the Council's concerns.
The Council has assessed the amended architectural plans ("the proposed development") and has confirmed that its concerns with the proposed development have been addressed subject to the imposition of conditions of consent.

Owners Consent

The Applicant in these proceedings, Janelle Tarabay, is the owner of the site and has provided owner's consent to the development application. See the development application form enclosed at Tab 1 of the Class 1 application.
The Development Application, as proposed to be amended, proposes work outside the site, on land owned by Council, being the: 1. re-grading of the existing Council footpath, 2. installation of a driveway crossing.
Section 39(2) of the LEC Act provides the Court with power to consent to these works pursuant to cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000, and landowner's consent can be given impliedly by the action of granting development consent: see Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724. The Council is aware that these works are proposed on public land, see: Lu v Walding (No 2) [2021] NSWLEC 21.

C. Public Advertisement

The Development Application as first lodged with Council was advertised and notified in accordance with the City of Canada Bay Council's Community Participation Plan 2019 (CPP). Eight submissions were received.
Following a request for further information, the Applicant submitted amended plans that were re-notified for a further 21 days. Five submissions were received.
Pursuant to Schedule 1, cl 23 of the EPA Act and Table 3 of the CPP, Council has formed the view that the amended material that the Applicant seeks to rely on does not require re-notification, as it formed the opinion that the changes result in a reduced or similar impact on neighbours.
Irrespective of this and with the Applicant's consent, residents who made written submissions for the purposes of the s 34AA conciliation/hearing were provided a copy of the amended architectural plans and have provided comments to the Council, that have been passed to the Applicant.

D. Canada Bay Local Environmental Plan 2013

The site is zoned R2 - Low Density Residential pursuant to the Canada Bay Local Environmental Plan 2013 (CBLEP).
The proposed development, being a dwelling house, is permissible with consent.
Clause 2.3(2) of CBLEP requires the consent authority to have regard to the objectives for development in the zone prior to determining the development application.
The objectives of the R2 zone are: • To provide for the housing needs of the community within a low-density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
The parties are satisfied that regard has been had to the objectives of the R2 zone and that the proposed development is consistent with these objectives.

Clause 4.3 of CBLEP - Height

Clause 4.3 of the CBLEP prescribes a height development standard of 8.5 metres. The proposed development has a maximum height of 7.6 metres to the top part of the building, which is compliant with the development standard.

Clause 4.4 of CBLEP - FSR

Clause 4.4 of the CBLEP prescribes a maximum floor space ratio ("FSR") of 0.5:1. The proposed development has an FSR of 0.5:1, which is compliant with the development standard.

Clause 6.1 of CBLEP - Acid Sulfate Soils

The site is not mapped as containing Acid Sulfate Soils, and clause 6.1 of the CBLEP does not apply.

Clause 6.2 of CBLEP - Earthworks

Clause 6.2 of the CBLEP requires the consent authority to consider the following matters prior to the issue of any consent: (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
The development application documentation and the conditions of consent, namely condition 3, 12, 17, 26, 27, 28, 43, address the matters required by cl 6.2 satisfactorily.

Clause 6.13 of CBLEP - Development in areas subject to aircraft noise

This clause applies to the site. The clause commenced after the lodgement of the development application but it does not include a savings provision.
Pursuant to cl 6.13(3), before determining a development application for development to which this clause applies, the consent authority - (a) must consider whether the development will result in the creation of a new dwelling, or an increase in the number of dwellings or people, affected by aircraft noise, and (b) must consider the location of the development in relation to the criteria set out in Table 2.1 (Building Site Acceptability Based on ANEF Zones) in AS 2021:2015, and (c) must be satisfied the development will meet the indoor design sound levels shown in Table 3.3 (Indoor Design Sound Levels for Determination of Aircraft Noise Reduction) in AS 2021:2015.
The amended architectural plans include notations confirming that the proposed development will comply with the requirements of AS 2021:2015. In respect of subclause (a), the proposed development is a replacement dwelling and will not increase the number of dwellings or people affected by aircraft noise. The parties consider that the amended architectural plans and conditions of consent satisfactorily address the requirements of this clause.

E. SEPP 55

State Environmental Planning Policy No 55 - Remediation of Land ("SEPP 55") applies to the site.
Clause 7(1)(a) of SEPP 55 requires the consent authority to consider whether land is contaminated.
The history of the site indicates a history of residential purposes. Therefore, it is not likely that the site has experienced any contamination.
In accordance with SEPP 55, the parties conclude that no further assessment of contamination is necessary.

F. BASIX

As required by State Environmental Planning Policy (Building and Sustainability Index: BASIX 2004), the application as amended is accompanied by a BASIX Certificate. State Environmental Planning Policy (Coastal Management) 2018 ("CM SEPP").
The site is mapped as being within the Proximity Area for Coastal Wetlands pursuant to the CM SEPP. The site is consequently in the coastal zone pursuant to s 5 of the Coastal Management Act 2016.
Division 1, cl 11 of the Coastal Management Act 2016 regulates development on land in the proximity area to coastal wetlands or littoral rainforests and provides that development consent must not be granted on land being within the proximity area unless the consent authority is satisfied that the proposed development will not significantly impact on: a. the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or b. the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.
The Court can be satisfied that the Development Application will not significantly impact on these matters, as: 1. the proposed development is a replacement dwelling, located two streets back from the foreshore, and over 60m distance from the coastal wetland, 2. the conditions of consent provide for stormwater management and the disposal of stormwater to Council's infrastructure, as well as requiring erosion and sedimentation controls.
In addition, cll 15 and 16 of the CM SEPP require that development consent must not be granted on land within the coastal zone unless the consent authority: 1. is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land, 2. has taken into consideration the relevant provisions of any certified coastal management program that applies to the land.
The Court can be satisfied that the Development Application is not likely to cause an increased risk of coastal hazards on the site or other land, as the site is located two streets back from the foreshore, and a sufficient distance from Parramatta River so as to not increase coastal hazards.
The Parramatta River Estuary Coastal Zone Management Plan (CZMP) (gazetted on 1 July 2016) applies to the local government area of Canada Bay, and is considered a certified coastal management program, pursuant to cl 4 of the CM SEPP and Sch 2, cl 4 of the Coastal Management Act 2016. Council has considered the CZMP, to the extent it is relevant.
State Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP 2005) SREP 2005 applies to the site as the land is within the Sydney Harbour Catchment as shown on the Sydney Harbour Catchment Map pursuant to cl 3 of the SREP 2005.
Pursuant to cl 17(2) of SREP 2005 the consent authority must not grant development consent to any development unless satisfied that the proposed development is consistent with the aims of the SREP 2005 listed in cl 2 and the objectives of the zone in which the development is proposed to be carried out.
The site is not within any Zone indicated on the SREP 2005 Zoning Map (see the Zoning Map attached).
The Court can be satisfied that the proposed development will not generate any inconsistency with the aims of SREP 2005, as the site is located sufficiently far away from the water. The parties agree that the Court would be satisfied that the Development Application is consistent with the aims of SREP 2005.
The Development Application is not within the Foreshore and Waterways Area (see the Foreshores and Waterways Area Map attached). The Development Application does not require referral to the Foreshores and Waterways Planning and Development Advisory Committee pursuant to cl 29 of SREP 2005.

The Court has jurisdiction to make the agreed orders

Having regard to all of the matters outlined above and the suite of documents comprising the Class 1 Application, the Court can be satisfied as to all preconditions to the granting of consent and that all relevant matters have been properly considered.
Accordingly, the Court has jurisdiction to make the orders sought by the parties in the s 34 agreement.
The Court orders: 1. The Applicant is granted leave to amend development application DA 2019/0119 and to rely upon the amended plans and documents listed in Condition 1 of Annexure "A" hereto. 2. The appeal is upheld. 3. Development Application DA 2019/0119 for the demolition of the existing dwelling and all ancillary structures and the construction of a two (2) storey dwelling with basement parking accessed from Market Street, new in-ground swimming pool and associated landscaping at 2 Gipps Street, Drummoyne, in accordance with amended architectural plans REV.E dated 18 March 2021 and amended engineering drawings dated 16 March 2021 - both contained in Annexure "B".

Acting Commissioner of the Court Annexure A (354009, pdf) Annexure B Part 1 (14111536, pdf) Annexure B Part 2 (19292360, pdf) Annexure B Part 3 (1993059, 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: 28 April 2021

At a glance

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Judgment (15 paragraphs)

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Cases Cited (2)