Zhou v Bayside Council

Land and Environment Court (NSW)|2022-08-17

Judgment

COMMISSIONER: These proceedings comprise two appeals. They relate to the unauthorised construction of a secondary dwelling which was approved as a cabana in the rear yard of premises owned by the applicant at 22 Dickin Avenue, Sandringham, being Lot B DP 26824 (site).
The site also contains a completed two-storey dwelling with integrated garage, which was approved by the respondent on 5 August 2014 in response to development application DA 2014/183. Subsequently, on 12 April 2016, the respondent approved DA 2016/198 for a cabana/storeroom at the rear of the site in the location of the unapproved secondary dwelling. DA2016/198 was approved with conditions restricting it being used for habitable purposes and the enclosure of the cabana without prior development consent.

The nature of the appeals

The nature of the individual appeals is as follows: 1. Appeal 1: 2022/115452 (BIC appeal). This is a Class 1 Miscellaneous appeal pursuant to s 8.25 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the respondent to issue a Building Information Certificate BC-2022/14 (BIC) to authorise the retention of the secondary dwelling as constructed. The application was lodged with the respondent on 9 March 2022 and this appeal was filed with the Court on 22 April 2022 within the time limit imposed by s 8.25(2) of the EPA Act. The Court has the power to determine this appeal pursuant to s 8.25(3) of the EPA Act. 2. Appeal 2: 2022/115456 (DA appeal). This is a Class 1 Development appeal pursuant to s 8.7(1) of the EPA Act against the deemed refusal by the respondent of development application DA 2022/62 for the change of use of the cabana to a 'secondary dwelling' and its subsequent use for that purpose (DA). The DA was lodged with the respondent on 7 March 2022 and this appeal was filed with the Court on 21 April 2022. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

The course of the appeals

With respect to the BIC appeal, the Court arranged for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act). With respect to the DA appeal, the matter was referred to mediation under s 26 of the Civil Procedure Act 2005. Both the conciliation conference and the mediation were held on 17 August 2022 and then adjourned to 15 September 2022, and again to 5 October 2022. I presided over both the conciliation conference and the mediation.
On 6 October 2022 at the parties' request, the DA mediation was terminated and listed for hearing pursuant to s 34AA of the LEC Act on 10 October 2022. Pursuant to s 34AA(2) of the LEC Act, s 34 of the LEC Act applies to those proceedings. As such, a conciliation conference is the first step in the determination of that appeal.
On 10 October 2022 during the course of the conciliation conferences, the parties reached agreement in both matters as to the terms of a decision which would be acceptable to the parties. This decision involved the Court upholding each appeal.
With respect to the BIC appeal, the parties' agreement involved the Court exercising its powers pursuant to s 8.25(3)(a) and (c) of the EPA Act and making orders requiring the partial demolition and remedial construction work to the proposed secondary dwelling structure, with a direction for the issue of a Building Information Certificate to the applicant upon satisfactory completion of the required works.
With respect to the DA appeal, the parties' agreement involved the Court upholding the applicant's written request pursuant to cl 4.6 of the Bayside Local Environmental Plan 2021 (BLEP 2021) with respect to the development standard in s 52(2)(b) of State Environmental Planning Policy (Housing) 2021 (Housing SEPP) which operates so as to fix a maximum floor space ratio (FSR) for the site at 0.5:1, upholding the appeal and granting development consent to the DA, in amended form, subject to the conditions of consent contained in Annexure 'A'.
The parties have informed me that the amended development application documents comprising the DA, were lodged on the NSW Planning Portal on 30 September 2022.

Satisfaction as to jurisdiction

Under s34(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.
With respect to the BIC appeal, s 8.25(3) of the EPA Act invests the Court with the following powers in the determination of the appeal: 8.25 Appeals with respect to Building Information Certificates (3) On hearing the appeal, the Court may do any one or more of the following - (a) direct the Council to issue a Building Information Certificate in such terms and on such conditions as the Court thinks fit, ... (c) make any other order that it considers appropriate.
I consider that the power to make the agreed orders in the BIC appeal is amply contained within s 8.25(3)(a) and (c) of the EPA Act.
With respect to the DA appeal, there are jurisdictional pre-requisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional pre-requisites of relevance in a joint jurisdictional statement and explained how those pre-requisites have been satisfied. The matters of relevance and the parties' explanation as to their satisfaction, are summarised below.

Owner's consent

Owner's consent to lodge the DA has been provided as part of the documentation which accompanied the DA.

The cl 4.6 written request

Section 52(2)(b) of the Housing SEPP restricts the total floor area of a principal dwelling and the secondary dwelling to no more than the maximum floor area permitted for a dwelling house on the land under another environmental planning instrument. Relevantly, BLEP 2021 sets a maximum FSR of 0.5:1 for the site, being a maximum gross floor area (GFA) of 261.93 m2 based upon the site area of 523.83 m2. The proposed development will have a total GFA of 290.29 m2, equivalent to an FSR of 0.554:1, representing a variation of 28.36 m2. The variation equates to a 10.8 per cent departure from the development standard in s 52(2)(b) of the Housing SEPP. The applicant relies upon cl 4.6 of BLEP 2021 to justify the total floor area exceedance. A written request on behalf of the applicant filed on 4 October 2022 requires consideration in this context.
The permissive power in cl 4.6(2) of BLEP 2021 to grant consent to development despite the contravention of a development standard, is subject to conditions that must be met before the power can be exercised: Initial Action Pty Limited v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (Initial Action); Rebel MH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [22] (Rebel).
There are three conditions which must be met in order to enliven the power in cl 4.6(2) of BLEP 2021.
First, the consent authority must consider a written request from the applicant which is of a specified content. It must positively demonstrate two things:

that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) of BLEP 2021). This is usually done by demonstrating that the objectives of the standard are achieved notwithstanding the non-compliance (Initial Action at [17]).
that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of BLEP 2021).

The justification must focus upon the breach (the aspect or element of the development that contravenes the development standard) and not upon the development as a whole package (Initial Action at [24]). These matters are outcomes and not processes: Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 at [77] (Baron).
Second, the consent authority must 'evaluate' the written request. This is a different task to the obligation to 'consider' in cl 4.6(3)(a) of BLEP 2021. The consent authority must form the opinion that it is satisfied that the written request has 'adequately addressed' the requirements in subcl (3) (cl 4.6(4)(a)(i) of BLEP 2021). The process leading to that state of satisfaction, or otherwise, will often require the consent authority to analyse whether it believes that the written request has, in fact, demonstrated each of the matters in cl 4.6(3) of BLEP 2021. The request cannot 'adequately' address the matters required to be demonstrated by cl 4.6(3) if it does not in fact demonstrate those matters (Baron at [78]).
Third, the consent authority must be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives of the zone in which the development is proposed to be carried out (cl 4.6(4)(a)(ii) of BLEP 2021).
With respect to cl 4.6(4)(b) of BLEP 2021, although s 39(6) of the LEC Act enables the Court to grant consent without obtaining or assuming the concurrence of the secretary, the Court should still consider the matters in subcl (5) (Initial Action at [29]).
In the conventional way, the applicant seeks to justify the contravention by first demonstrating that compliance with the standard is unreasonable or unnecessary in the circumstances of the case because the objectives of the standard are achieved notwithstanding the breach. There are no objectives contained within s 52(2)(b) of the Housing SEPP but since the clause applies the FSR development standard in cl 4.4 of BLEP 2021, the objectives for that clause form the basis for appropriate consideration. The objectives seek to control density and intensity of land use to bring about compatibility with the bulk and scale of the future character of the locality, minimise adverse environmental effects on the use or enjoyment of adjoining properties and maintain an appropriate visual relationship between new and existing development. I agree with the parties that the design of the building achieves those objectives.
Further, I agree with and adopt the reasoning contained within the written request that there are sufficient environmental planning grounds to justify the contravention. The grounds relied upon include that the dimensions of the building are the same as that approved by the respondent when it approved the cabana, the fact that no additional amenity impacts result from the change of use of the structure to a secondary dwelling in circumstances where the proposed secondary dwelling itself complies with the maximum floor area for a secondary dwelling in BLEP 2021 and is a permissible form of development in the zone. Further, the works associated with the development application will maintain half of the approved floor space of the building as approved and will retain the open interface between the primary dwelling and the northern elevation of the building approved under DA 2016/198 with no change to site coverage or landscaped areas. Finally, the DA proposes to provide additional openings on the side elevations of the building clearly delineating the internal and external areas of that building. Further landscape works beyond those approved under DA 2016/198 are likely to present an improved environmental outcome on the site to that which was originally approved.
Accordingly, I am satisfied, as required by cl 4.6(4)(a)(i) of BLEP 2021 that the applicant's written request has adequately addressed the above requirements.
I am further satisfied, as required by cl 4.6(4)(a)(ii) of BLEP 2021 that the proposed development will be in the public interest because it is consistent not only with the objectives of the floor area standard, but also the objectives of the R2 Low Density Residential Zone in which the site is located.
Having reached the required state of satisfaction mandated by cl 4.6 of BLEP 2021, the power to grant development consent despite the floor area contravention is enlivened and the written request to vary that standard may be upheld.

BLEP 2021 (other provisions)

Pursuant to cl 1.2 of BLEP 2021, the parties are satisfied that, subject to conditions which have been agreed, the proposal is consistent with the aims of BLEP 2021 set out in cl 1.2 of BLEP 2021.
The proposed secondary dwelling presents no change to the existing building height and will maintain compliance with the development standard in cl 4.3 of BLEP 2021. It will comply with the maximum size for a secondary dwelling (60 m2) in cl 5.4 of BLEP 2021 because it has an area of 29.61 m2.
The requirements in cll 6.1 (Acid Sulfate Soils), 6.3 (Stormwater Management) and 6.11 (Essential Services) have been satisfactorily addressed.

State Environmental Planning Policy (BASIX) Sustainability Index - 2004 (BASIX)

The DA, as amended, is supported by a BASIX certificate. It satisfies the requirements in cl 75 of the Environmental Planning and Assessment Regulation 2021.

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

Section 4.6 of the Resilience and Hazards SEPP identifies the matters that must be considered before consent can be granted. The evidence is that past land uses have been exclusively for residential purposes and I am satisfied that the relevant requirements of Resilience and Hazards SEPP have been considered and that there is no basis to refuse consent by reason of contamination.

Disposal of proceedings in accordance with the parties' decision

I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. Accordingly, 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 in the DA appeal, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Proceedings 2022/115452 (Appeal 1) (BIC appeal)

The Court orders: 1. The appeal is upheld. 2. Pursuant to s 8.25(3)(a) and (c) of the Environmental Planning and Assessment 1979, in respect of the secondary dwelling structure in the rear of the property at 22 Dickin Avenue, Sandringham, Lot B DP 26824 (Land): 1. Within 120 days of the date of these Orders, the applicant is to: 1. carry out the demolition works to the existing secondary dwelling structure in the rear of the Land as indicated orange on the plans prepared by Inshape Building Designs dated 10/08/22 reference A22/1 drawing numbers A001 - A012, which are annexed to these orders and marked 'A'. 2. carry out the building works indicated in blue on the plans prepared by Inshape Building Designs dated 10/08/22 reference A22/1 drawing numbers A001 - A012, which are annexed to these orders and marked 'B' so as to reduce the size of the dwelling component of the structure and create an open alfresco area (Alfresco/Secondary Dwelling Structure), with such works to be carried out in accordance with, and be consistent with, the development consent granted in Land and Environment Court Proceedings No 2022/115456; 3. carry out the works recommended in the report prepared by 360 Certification dated 15 September 2022 Revision 4 annexed to these orders and marked 'C'; 4. provide the respondent with a report from a qualified structural engineer certifying the structural adequacy of the Alfresco/Secondary Dwelling Structure following the completion of the works required by Order 2(a)(i) and (ii) above; 5. notify the respondent when it has complied with Order 2(a)(i), (ii) and (iii) above. 1. Within 14 days of the notification referred to in Order 2(a)(v) above, the respondent: 1. is to carry out an inspection of the Alfresco/Secondary Dwelling Structure to confirm compliance with Orders 2(a)(i), (ii) and (iii) above, at a mutually agreed time or failing agreement upon providing 48 hours' notice; and 2. notify the applicant in writing within two days after the inspection referred to in Order 2(b)(i) above, as to whether it is satisfied that the applicant has complied with Orders 2(a)(i), (ii) and (iii) above, and if not satisfied provide reasons for its dissatisfaction 3. Upon the respondent providing, in accordance with Order 2(b)(ii) above, written notice to the applicant in writing as to its satisfaction that the applicant has complied with Orders 2(a)(i), (ii) and (iii) above, the respondent is thereby directed, within 14 days, to issue a Building Information Certificate to the applicant in relation to the Alfresco/Secondary Dwelling Structure. 1. On a continuing and ongoing basis for the life of the Alfresco/ Secondary Dwelling Structure: The alfresco component of the Alfresco/Secondary Dwelling Structure shall remain open in perpetuity. No further alterations and/or additions shall be undertaken to convert this area back into a dwelling. This includes the fitting of any form of doors, windows, walls and/or enclosing elements.

Proceedings 2022/115456 (Appeal 2) (DA appeal)

The Court notes: 1. Bayside Council, as the relevant consent authority, has agreed, under cl 37 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development application DA 2022/62 in accordance with the documents listed below: 1. A001, Cover Sheet prepared by Inshape building Designs dated 30 September 2022 2. A002, Notes prepared by Inshape building Designs dated 30 September 2022 3. A003, Site Plan prepared by Inshape building Designs dated 30 September 2022 4. A004, Notification Plan prepared by Inshape building Designs dated 30 September 2022 5. A005, Roof Plan prepared by Inshape building Designs dated 30 September 2022 6. A006, Landscape Plan prepared by Inshape building Designs dated 30 September 2022 7. A007, Ground Floor Plan prepared by Inshape building Designs dated 30 September 2022 8. A008, Elevations prepared by Inshape building Designs dated 30 September 2022 9. A009, Section prepared by Inshape building Designs dated 30 September 2022 10. A009, Section prepared by Inshape building Designs dated 10 August 2022 11. A010, Windows & Doors Schedules prepared by Inshape building Designs dated 30 September 2022 12. A011, BASIX Commitments prepared by Inshape building Designs dated 30 September 2022 13. A012, Demolition Plans prepared by Inshape building Designs dated 30 September 2022 14. Clause 4.6 Written Request prepared by Chapman Planning Pty Ltd dated 15 September 2022 15. Drawing no. S01 Rev A prepared by MBC Engineering Pty Ltd dated 13 September 2022 16. Drawing no. S02 Rev A prepared by MBC Engineering Pty Ltd dated 13 September 2022. 17. BCA Report prepared by 360 Certification dated 15 September 2022 18. BASIX certificate dated 30 September 2022 1. The amended development application documents listed above were lodged on the NSW Planning Portal on 30 September 2022. 2. The applicant's undertaking to the Court, as follows: 1. Unless otherwise varied by amended undertaking varying the timing on the basis of tradesperson availability with the respondent's agreement (such agreement not to be unreasonably withheld), within 120 days of the making of orders in these proceedings, the applicant will carry out the demolition works to the existing secondary dwelling at the rear of 22 Dickin Avenue, Sandringham 2219 (Lot B DP 26824) as indicated orange on the plans prepared by Inshape Building Designs dated 10/08/22 reference A22/1 drawing numbers A001 - A012, which are referred to in [36(1)] above; 2. Unless otherwise varied by amended undertaking varying the timing on the basis of tradesperson availability with the respondent's agreement (such agreement not to be unreasonably withheld), from 120 days of the making of orders in these proceedings, on a continuing and ongoing basis for the life of the new alfresco/ secondary dwelling structure the subject of these proceedings: The alfresco component of the alfresco/ secondary dwelling structure the subject of these proceedings shall remain open in perpetuity. No further alterations and/or additions shall be undertaken to convert this area back into a dwelling. This includes the fitting of any form of doors, windows, walls and/or enclosing elements.
The Court orders: 1. The applicant's written request pursuant to cl 4.6 of the Bayside Local Environmental Plan 2021 to vary the maximum floor area development standard contained in s 52(2)(b) of the State Environmental Planning Policy (Housing) 2021 is upheld. 2. The appeal is upheld. 3. Development application DA 2022/62 for demolition works and change of use of the cabana/outbuilding to a secondary dwelling at 22 Dickin Avenue, Sandringham, being Lot B DP 26824 is determined by the grant of consent subject to the conditions contained in Annexure 'A'. ………………………. C McEwen Acting Commissioner of the Court Proceedings 2022/115452 Annexures A-C (3567928, pdf) Proceedings 2022/115456 Annexure A (231339, 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: 24 November 2022

(2019) 243 LGERA 338

(2018) 236 LGERA 256

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