Abou-Zied v City of Canada Bay Council

[2024] NSWLEC 1038

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Abou-Zied v City of Canada Bay Council [2024] NSWLEC 1038

Hearing dates:

Conciliation conference on 01 and 02 February 2024

Date of orders:

08 February 2024

Decision date:

08 February 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

(2) The appeal is upheld.

(3) Development Application DA2023/0031 for alterations and additions to an existing dwelling to create an attached two-storey dual occupancy with strata subdivision on land legally identified as Lot 2 in DP 309014, also known as 56 Bowman Street, Drummoyne, is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – dual occupancy – heritage – conciliation conference – agreement between the parties – orders

Legislation Cited:

Canada Bay Local Environmental Plan 2013, cll 4.1A, 4.3, 4.4, 5.10, 6.2, 6.13 and Sch 5

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, 2.6, 2.10, and Ch 6, Div 2

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

Category:

Principal judgment

Parties:

Nevill Louis Abou-Zied (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
R White (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2023/227994

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application DA2023/0031. The development application seeks development consent for alterations and additions to the existing dwelling to create an attached dual occupancy and strata title subdivision (development application) at 56 Bowman Street, Drummoyne (Lot 2 DP 309014).

2. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending development application DA2023/0031 in accordance with the documents listed at [23] (amended application). The amendments can be summarised as follows:

• Amendment to the new built form sections and roof form, including new roof pitches and overall lowering of the rear building sections;

• Detailed design changes in relation to heritage;

• Changes to the front landscaped area.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 and 2 February 2024. I have presided over the conciliation conference.

4. 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 for the amended application and granting development consent to the amended application subject to conditions.

5. I note that as part of the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

9. I am satisfied that owners consent accompanied the development application.

10. The development application was lodged to the Respondent on 17 February 2023. The Respondent notified the development application between 20 February 2023 and 13 March 2023. 12 submissions were received. At the beginning of the site viewing on 1 February 2024, the Court heard oral concerns from three people. The written and oral concerns raised are summarised below:

• Heritage impacts;

• Compatibility with the streetscape;

• Bulk and scale viewed from the street and adjoining properties;

• Overshadowing and loss of solar access;

• Traffic, parking and on-street parking impacts;

• Inadequate landscaping;

• Colours and finishes;

• Consistency with the application of planning controls;

• Impact on land values.

11. As the parties have entered into an agreement, Council, as the consent authority, has considered the concerns raised.

Canada Bay Local Environmental Plan 2013

12. The site is zoned R2 Low Density Residential under the Canada Bay Local Environmental Plan 2013 (CBLEP). The proposed development for a dual occupancy is permitted with consent and I have had regard to the objectives of the zone.

13. The parties agree and I accept that the following applicable CBLEP provisions are met:

1. Clause 4.1A minimum lot size for dual occupancies requires a minimum lot size of 450m² and width of 14m. The Statement of Facts and Contentions and survey plan prepared by CC Surveying dated 4 April 2017 detail the lot size as 708.2m² and width of 17.68m.

2. Clause 4.3(2) sets a maximum building height of 8.5m. The amended architectural plans (dwg s.34-10) demonstrate the amended application is below 8.5m.

3. Clause 4.4 floor space ratio (FSR) sets a maximum of 0.5:1. The amended architectural plans (dwg S.34-06) demonstrate the amended application is below 0.5:1.

4. Clause 5.10 heritage conservation applies to the site. In accordance with sch 5, the site is mapped within the Bourketown Conservation Area. The amended application has been considered by the parties’ heritage experts. The experts have agreed that the revised design responds appropriately to the Bourketown Conservation Area and will not adversely impact the heritage significance of the area. Further conditions of consent regarding heritage detailing have been agreed and included in Annexure A.

5. Clause 6.2 earthworks applies to the amended application. The amended application is accompanied by architectural plans, waste management plans and a sediment and erosion control plan which address the provisions. Appropriate conditions of consent are provided within Annexure A.

6. Clause 6.13 in relation to aircraft noise applies. The amended application is supported by an Aircraft Noise Assessment report prepared by EMM Consulting dated 27 January 2023 (noise report). Based on the ANEF levels for the site, the noise report includes recommendations to mitigate noise impacts. The noise report forms part of the conditions of consent at Annexure A.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

14. The development application was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022. In accordance with the savings provisions under s 4.2, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies instead.

15. The parties agree and I am satisfied that the amended application is accompanied by amended BASIX Certificates (A401988_03 and A401969_04) that meet the provisions of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

16. Chapters 2 and 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) apply to the amended application.

17. Section 2.6 requires approval for vegetation removal and s 2.10 requires consideration of vegetation within a heritage conservation area. The parties agree and I accept that the proposed removal of vegetation, primarily to the rear, will not affect the heritage significance of the heritage conservation area.

18. Chapter 6 applies as the site is located within the Sydney Harbour Catchment area. I have considered the SEE and Respondent’s original development assessment report dated 15 June 2023 (assessment report). The parties agree and I accept that the amended application does not visually impact on Sydney Harbour or its foreshore and that adequate provisions have made in relation to stormwater management to satisfy the relevant provisions of Ch 6, Div 2.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The amended application is accompanied by a Statement of Environmental Effects prepared by GAT & Associates dated December 2022 (SEE) which states that the site has a history of residential use and is suitable for the proposed use. The Respondent’s assessment report dated 15 June 2023 (assessment report) agreed that the site is suitable for the proposed development. Accordingly, the parties agree, and I am satisfied that the provisions of s 4.6 of SEPP Resilience and Hazards have been adequately addressed.

Conclusion

20. 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.

21. 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.

22. I have considered the jurisdictional prerequisites 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.

23. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA2023/0031 in accordance with the documents listed below:

Reference/Dwg No	Title/Description	Prepared By	Date
S.34-02 Rev H	BASIX Commitments	Design Link	2 February 2024
S.34-03 Rev G	Erosion & Sediment Control Plan	Design Link	1 February 2024
S.34-04 Rev G	Strata Subdivision	Design Link	1 February 2024
S.34-06 Rev G	Site Plan	Design Link	1 February 2024
S.34-07 Rev G	Proposed Ground Floor	Design Link	1 February 2024
S.34-08 Rev G	Proposed First Floor Plan	Design Link	1 February 2024
S.34-09 Rev G	Proposed Roof Plan	Design Link	1 February 2024
S.34-10 Rev G	Elevations	Design Link	1 February 2024
S.34-11 Rev G	Verandah and Fencing Detailing	Design Link	1 February 2024
S.34-12 Rev G	Sections	Design Link	1 February 2024
S.34-24 Rev G	Schedule of Colours and Materials	Design Link	1 February 2024
S.34-25 Rev G	Existing & Demolition Floor Plan	Design Link	1 February 2024
SW001 Rev D	Engineering - Cover Sheet	Capital Engineering Consultants	1 February 2024
SW010 Rev D	Site Stormwater Plan & Details	Capital Engineering Consultants	1 February 2024
SW011 Rev D	On Site Detention Plan & Section Details	Capital Engineering Consultants	1 February 2024
SW020 Rev D	First Floor & Roof Plan	Capital Engineering Consultants	1 February 2024
SW020 Rev D	Erosion and Sediment Control Plan	Capital Engineering Consultants	1 February 2024
SW20205.L01	Stormwater Response letter regarding Gutter Flow Analysis	Capital Engineering Consultants	1 February 2024
Revised Schedule of Conservation Works	Carste Studios	16 January 2024
A401969_04	BASIX Certificate (56)	Design Link	2 February 2024
A401988_03	BASIX Certificate (56B)	Design Link	2 February 2024

Orders:

24. The Court orders:

1. The Applicant is directed to file the amended development application the subject of Order (3) within 7 days of the date of this Order.

2. The appeal is upheld.

3. Development Application DA2023/0031 for alterations and additions to an existing dwelling to create an attached two-storey dual occupancy with strata subdivision on land legally identified as Lot 2 in DP 309014, also known as 56 Bowman Street, Drummoyne, is determined by the grant of consent subject to the conditions contained in Annexure A.

S Porter

Commissioner of the Court

**********

Annexure A 

Amendments

09 February 2024 - Hearing dates on coversheet amended to include 'conciliation conference on'.

Decision last updated: 09 February 2024