Vulic v Northern Beaches Council

Parties: Luka Vulic (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
M Mantei (solicitor) (Applicant)
M Dimingo (solicitor) (Respondent)
Solicitors:
Madison Marcus Law Firm (Applicant)
Northern Beaches Council (Respondent)

File Number(s): 2024/235485

Publication restriction: No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Northern Beaches Council (the Council) of Development Application No. DA2023/1674 for the demolition of existing dwelling house, the subdivision of one (1) lot into three (3) lots, removal of trees and construction of a new driveway and passing bay (the Proposed Development) at 37 Maxwell Parade, Frenches Forests known as Lot 6 DP 27591 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on Site and at Council Chambers.

3. 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, and which addressed the Council’s contentions. The s 34 agreement could not be finalised until a registered ROW easement was obtained from the neighbour which caused some delay in finalising the s 34 agreement.

4. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A. The terms of the decision include Council agreeing to the amendment of the DA and the Applicant providing the documents and plans as noted below.

5. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions and considered in the Applicants Statement of Environmental Effects (SEE).

Satisfaction as to Jurisdiction

6. Regarding jurisdiction and taking into account the parties’ advice in the Statement, which I quote in part below, I am satisfied in regard to the following relevant matters.

7. The registered proprietors of the Site are Luka Vulic and Marie Vulic. Both owners have provided written consent to the lodgement of the DA in accordance with s 23(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

8. The proposed development is also partly located on adjoining land described as Lot 51 DP 843350. The registered proprietors of the adjoining land are Kenneth David Rapkins and Vanessa Rowena Rapkins. Both owners of the adjoining land have provided written consent to the lodgement of the DA in accordance with s 23(1) of the EPA Regulation.

Warringah Local Environmental Plan 2011

9. The Site is located within the R2 Low Density Residential zone under Warringah Local Environmental Plan 2011 (WLEP 2011). The Proposed Development is permitted with development consent under cl 2.6 (subdivision) and cl 2.7 (demolition).

10. Clause 2.3(2) of WLEP 2011 requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The Parties agree that the objectives of the R2 zone have been considered in accordance with the obligation under cl 2.3(2) of the WLEP 2011.

11. The Parties agree that the Proposed Development complies with the following jurisdictional requirements in WLEP 2011:

12. Clause 4.1(3) (Minimum subdivision lot size) and the lot size map identify a minimum lot size for a resulting lot of no less than 600m2, where, in calculating the size of a lot the area of any access corridor (including any right of carriageway, access way or other area that provides for vehicle access) is to be excluded, whether the access corridor is to be created or is in existence at the time of the application for development consent for the subdivision (see cl 4.1(3A)).

13. The proposed resulting lots (excluding the existing and proposed) access handles are greater than then minimum size, being:

(a) Lot 1: 693m2, (b) Lot 2: 620m2, and (c) Lot 3: 620m2

12. Clause 6.2(3) (Earthworks) requires the consent authority to consider specified matters before granting development consent for earthworks. The DA is supported by the SEE and a Geotechnical Report prepared by White Geotechnical Group. The Parties are satisfied that the matters specified in cl 6.2(3) have been considered and that the impact of the proposed earthworks is otherwise acceptable.

13. Clause 6.4(3) (Development on Sloping Land) requires the consent authority to consider specified matters before granting development consent for development on land shown as Area A to E on the Landslip Risk Map. The Site is partly located in Areas A and B.

14. The Parties are satisfied, and the Court accepts that the matters raised above in relation to the applicable clauses of the WLEP have been considered and that the Site is otherwise suitable for the proposed development and no jurisdictional impediments arise.

State Environmental Planning Policies

15. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following State Environmental Planning Policies, discussed in the parties Statement, and agree with the parties’ conclusions that no jurisdictional impediments arise pursuant to:

16. State Environmental Planning Policy (Resilience and Hazards) 2021

17. State Environmental Planning Policy (Transport and Infrastructure) 2021

Public Consultation

16. The DA was notified to adjoining property owners and publicly advertised and exhibited for a period of 15 days from 24 November 2023 to 8 December 2023. During this period, thirteen (13) unique submissions were received. The main issues raised in the submissions included:

(a) Future development on proposed lot 61; (b) Demolition and construction on no.39 Maxwell Parade; (c) Geotechnical report; (d) Hydraulic and driveway reports/cut and fill plan; (e) Access and traffic on the right of carriageway; (f) Proposed right of carriageway (D) of the subdivision plan; (g) Street parking; (h) Bin collection; (i) Impacts to general amenity; (j) Tree removal and protection; (k) Asbestos; (l) Location of passing bay; (m) Location of existing services; (n) Stormwater disposal

17. The Council has considered the objectors concerns in reaching a decision to agree to a grant of consent in the s34 Agreement. I am satisfied that the objectors reasonable concerns were considered by the parties, and the objectors were accorded procedural fairness.

Conclusion

18. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

19. 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. 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.

Notations:

20. The Court notes:

21. Northern Beaches Council, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA-2023/1674 to rely on the following amended plans and documents:

(a) Land owners consent letter form the owners of lot 6 DP 843350, Mr K and Mrs V Rapkins dated 15 January 2025; (b) Proposed Subdivision Plan prepared by Intrax Land revision C dated 15 January 2025; (c) Preliminary Stormwater Management Report prepared by Nasseri Associates dated 13 November 2024; (d) Revised Concept Hydraulic & Driveway Plan prepared by Nasseri Associates revision E dated 19 November 2024; and (e) Construction Management Plan revision A dated 28 November 2024.

Orders:

21. The Court orders:

22. The appeal is upheld;

23. Development consent is granted to Development Application No. DA/2023/1674 for demolition works and subdivision of one lot into three lots at Lot 6 DP 27591, 37 Maxwell Parade Frenchs Forest NSW 2086 subject to conditions annexed and marked Annexure A;

24. The Applicant is to pay the Respondents costs thrown away pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979, as result of the amendment of the development application, in the agreed sum of $2,000.

L Byrne

Acting Commissioner of the Court

Annexure A (290787, pdf)

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