Zheng v City of Canada Bay Council

Representation: Counsel:
M Staunton (Applicant)
D Havadjia (Solicitor) (Respondent)
Solicitors:
McCullough Robertson Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2025/129101

Publication restriction: No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal of Development Application No. 2024/0180 for the demolition of the existing single-storey dwelling and erection of a two-storey dwelling with swimming pool, basement, and related landscaping (the proposal), at 6 Norman Street, Five Dock (the site), by the City of Canada Bay Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 9 September 2025. 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. 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.

3. 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 preconditions to the exercise of power to grant development consent for the proposal.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW). The plans and documents comprising the amended application are as follows:

| Title | Reference / Revision | Author | Date | | Architectural diagrams | | Cover Page | Issue E | Zion Architects | 29.08.2025 | | Site – Site Plan & Analysis | DA-101, Issue E | Zion Architects | 29.08.2025 | | Site – Demolition Plan | DA-102, Issue E | Zion Architects | 29.08.2025 | | Floor Plans – Basement | DA-201, Issue E | Zion Architects | 29.08.2025 | | Floor Plans – Ground Floor | DA-202, Issue E | Zion Architects | 29.08.2025 | | Floor Plans – Level 1 | DA-203, Issue E | Zion Architects | 29.08.2025 | | Floor Plans – Roof | DA-204, Issue E | Zion Architects | 29.08.2025 | | Elevations – East/North/South/West | DA-301, Issue E | Zion Architects | 29.08.2025 | | Elevations – Streetscape | DA-302, Issue E | Zion Architects | 29.08.2025 | | Elevations – View Analysis – No. 8 Norman | DA-303, Issue E | Zion Architects | 29.08.2025 | | Elevations – View Analysis – Proposed | DA-304, Issue E | Zion Architects | 29.08.2025 | | Sections – AA/BB/CC/DD/EE | DA-401, Issue E | Zion Architects | 29.08.2025 | | Compliance – GFA & Landscape Calculations | DA-501, Issue E | Zion Architects | 29.08.2025 | | Compliance – View From The Sun | DA-502, Issue E | Zion Architects | 29.08.2025 | | Compliance – Shadow Diagrams Winter – Existing | DA-503, Issue E | Zion Architects | 29.08.2025 | | Compliance – Shadow Diagrams Winter – Proposed | DA-504, Issue E | Zion Architects | 29.08.2025 | | Compliance – Height of Building Diagrams | DA-505, Issue E | Zion Architects | 29.08.2025 | | Compliance – View Impact Images | DA-506, Issue E | Zion Architects | 29.08.2025 | | External Finishes – Minnesota Ave Corner | DA-601, Issue E | Zion Architects | 29.08.2025 | | External Finishes – Norman St Entry | DA-602, Issue E | Zion Architects | 29.08.2025 | | External Finishes – Norman St Driveway | DA-603, Issue E | Zion Architects | 29.08.2025 | | External Finishes – Minnesota Ave Rear | DA-604, Issue E | Zion Architects | 29.08.2025 | | External Finishes – Alfresco View | DA-605, Issue E | Zion Architects | 29.08.2025 | | External Finishes – Lobby View Interior | DA-606, Issue E | Zion Architects | 29.08.2025 | | External Finishes – Dining Lobby Interior | DA-607, Issue E | Zion Architects | 29.08.2025 | | Window & Door Schedules – Window & Door Schedules | DA-701, Issue E | Zion Architects | 29.08.2025 | | Swept path diagrams | | Ground Floor – Compliance Assessment | 25142-V1.4-SP (Sheet No. 01 of 06) | Genesis Traffic | 19.08.2025 | | Ground Floor – Swept Path Assessment – B99 Entry and Exit | 25142-V1.4-SP (Sheet Number 02 of 06) | Genesis Traffic | 19.08.2025 | | Basement – Compliance Assessment | 25142-V1.4-SP (Sheet Number 03 of 06) | Genesis Traffic | 19.08.2025 | | Ground Floor – Swept Path Assessment – B99 Top Space Entry and Exit | 25142-V1.4-SP (Sheet Number 04 of 06) | Genesis Traffic | 19.08.2025 | | Ground Floor – Swept Path Assessment – B99 Top Space Entry and Exit | 25142-V1.4-SP (Sheet Number 05 of 06) | Genesis Traffic | 19.08.2025 | | Ground Floor – Swept Path Assessment – B99 Bottom Space Entry and Exit | 25142-V1.4-SP (Sheet Number 06 of 06) | Genesis Traffic | 19.08.2025 | | Ground Floor – Swept Path Assessment – B99 Bottom Space Entry and Exit | 25142-V1.4-SP (Sheet Number 07 of 06) | Genesis Traffic | 19.08.2025 | | Civil engineering plans | | Proposed Civil Plans | 20250367-S34-CIV-DWG-02 – Cover Sheet – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | Specifications Sheet | 20250367-S34-CIV-DWG-02 – S101 – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | General Arrangement Plan | 20250367-S34-CIV-DWG-02 – S200 – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | Slope Analysis Plan | 20250367-S34-CIV-DWG-02 – S300 – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | Bulk Earthwork Plan | 20250367-S34-CIV-DWG-02 – S301 – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | Driveway Long Sections | 20250367-S34-CIV-DWG-02 – S400 – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | Driveway Long Sections | 20250367-S34-CIV-DWG-02 – S401 – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | Driveway Long Sections | 20250367-S34-CIV-DWG-02 – S402 – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | Driveway Long Sections | 20250367-S34-CIV-DWG-02 – S403 – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | Council Standard Drawings | 20250367-S34-CIV-DWG-02 – S500 – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | Council Standard Drawings | 20250367-S34-CIV-DWG-02 – S501 – Rev 02 | Deboke Engineering Consultants | 19.08.2025 | | Reports and statements | | Street Drainage Analysis – 6 Norman Street Five Dock 2046 | 20250367-S34-FL-SDA-01-Street Drainage Analysis | Deboke Engineering Consultants | 11.08.2025 | | Letter from Mr Andrew Arida of Deboke Engineering Consultants to Mr Shuyuan David Zheng Re: S34 – Civil Design for the Residential Development at 6 Norman Street Five Dock 2046 | 20250367-S34-CIV-DWG-02-Design Certificate | Deboke Engineering Consultants | 19.08.2025 | | Amended BASIX Certificate | | BASIX Certificate No. 1750509S_02 | | | 09.09.2025 | | Amended NatHERS Certificate | | NatHERS Certificate No. #HR-8VVE9F-01 | | | 09.09.2025 |

5. The amended application includes the following changes to the proposal in the Class 1 application:

a. relocation of driveway from Minnesota Avenue to Norman Street;

b. reduction in external wall widths and preparation of amended gross floor area calculations;

c. alterations to layout of the floor levels;

d. preparation of view analysis images (DA-303, DA-304, and DA-506);

e. alterations to the rear terrace and first floor balcony, including (without limitation) an increased side setback for the ground floor terrace and additional fixed vertical louvres for the first floor balcony;

f. amendments to reduce the number of trees removed from the Site (from 12 to seven), and retention of a street tree previously identified for removal;

g. bin location nominated in the northern setback, thus facilitating direct access towards Norman Street;

h. increase of 50mm to finished ground level;

i. relocation of the proposed swimming pool by approximately one metre towards the southern side boundary; and

j. changes required in order to facilitate the above amendments, and additional details added.

6. The Council is satisfied that the changes made to the proposal in the amended application satisfactorily address the contentions raised in the Council’s Statement of Facts and Contentions filed on 12 May 2025.

Pre-conditions to the grant of consent

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

7. I accept the Council’s assessment that the site is suitable for the development, having been historically used for a residential purpose and that there is no evidence of contamination on the site, and that the matters under s 4.6 of the Resilience and Hazards SEPP have been addressed by The Statement of Environmental Effects prepared by Pragma Urban Planning Pty Ltd.

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

8. Chapter 6 (Water Catchments) of the Biodiversity and Conservation SEPP applies to the site, as it falls within the Sydney Harbour Catchment. Sections 6.6 to 6.10 of the Biodiversity and Conservation SEPP contain matters that the consent authority must be satisfied of, and must consider, before granting development consent to development on land in a regulated catchment.

9. The stormwater/civil engineering plans prepared by Deboke Engineering Consultants and dated 19 August 2025 demonstrate that the amended proposal can be designed in accordance with typical stormwater, capture, filtration, and release measures required by The City of Canada Bay Development Control Plan. Condition 5 requires the submission of a full set of stormwater plans that demonstrate compliance with Council’s DCP – Appendix 2 Engineering Specification 2025. Council’s engineering specification together with condition 6 require OSD to ensure that post-development flows are no greater than pre-development flows together with a trash screen on the OSD outlet. The BASIX Certificate requires a 2000L rainwater tank together with re-use of the rainwater. Condition 7 requires the installation and maintenance of erosion and sediment controls during construction. The Development subject to the proposed conditions of consent will ensure that the requirements of Chapter 6 of the Biodiversity SEPP are met.

10. Section 60O(a)(i) of the Local Land Services Act 2013 (NSW) authorises clearing of vegetation by development consent under Part 4 of the EPA Act.

Canada Bay Local Environmental Plan 2013 (LEP 2013)

11. The site is zoned R2 pursuant to LEP 2013. The objectives of the zone, to which regard must be had, 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.

12. The amended proposal complies with the height of buildings and floor space ratio development standards under cll 4.3 and 4.4 of LEP 2013.

13. The site is mapped as comprising Class 5 acid sulfate soils. The application includes an Acid Sulfate Soils Investigation and Assessment Report which indicates for the purposes of cl 6.1(4)(a) of LEP 2013 that an acid sulfate soils management plan is not required in respect of the amended application.

14. I am satisfied that the proposed earthworks associated with the amended application are satisfactory having regard to the matters under cl 6.2(3) of LEP 2013.

Conclusion

15. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 9 September 2025 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.

Orders

16. The orders of the Court are:

17. The appeal is upheld.

18. Development Application No. 2024/0180, as amended, for demolition of existing single-storey dwelling and erection of two-storey dwelling with swimming pool, basement, and related landscaping, at 6 Norman Street, Five Dock, is determined by the grant of development consent subject to the conditions at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A (368 KB, pdf)

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