Adams v Northern Beaches Council

[2023] NSWLEC 1705

Land and Environment Court

New South Wales

Medium Neutral Citation:

Adams v Northern Beaches Council [2023] NSWLEC 1705

Hearing dates:

Conciliation conference on 29 August, 9 and 24 October 2023

Date of orders:

23 November 2023

Decision date:

23 November 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, the applicant is to pay the costs of the respondent that are thrown away as a result of the Court allowing the applicant to file the Amended Development Application as agreed or assessed.

(2) The updated written request made pursuant to cl 4.6 of the Manly Local Environmental Plan 2013, seeking to vary the floor space ratio development standard in cl 4.4 of the Manly Local Environmental Plan 2013 prepared by Anna Williams dated 5 October 2023, is upheld.

(3) The appeal is upheld.

(4) Development application No DA2022/0727, as amended, for alterations and additions to an existing semi-detached dwelling at 12 Clarence Street, Balgowlah, NSW, being Lot 1 in DP 445281, is determined by the grant of consent subject to conditions of consent in Annexure “A”.

(5) The applicant is required to file the plans and documents referred to in order (4) within 7 days of the date of this judgment.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 8.10, 8.14, 8.15

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 17, 34

Manly Local Environmental Plan 2013 cll 4.4, 4.6, 6.2, 6.4, 6.12

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Texts Cited:

Manly Development Control Plan 2013

Category:

Principal judgment

Parties:

Matthew Adams (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Adams (Self-represented) (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Northern Beaches Council (Respondent)

File Number(s):

2023/94144

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application (DA2022/0727) (Development Application) for alterations and additions to a semi-detached dwelling house on land identified as Lot 1 in Deposited Plan 445281, known as 12 Clarence Street, Balgowlah (Site).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Development Application

3. The Development Application as lodged with the respondent on 3 June 2022 sought consent for alterations and additions to an existing semi-detached dwelling including:

1. construction of a first-floor addition, including two bedrooms, one bathroom, rumpus area and rear balcony;

2. ground floor rear extension of kitchen/living areas and new outdoor patio;

3. internal alterations to existing ground floor; and

4. associated landscaping work.

4. On 12 July 2022, the respondent advised the applicant that the Development Application could not be supported in its current form and provided an opportunity for the applicant to either amend the design or withdraw the Development Application.

5. On 23 August 2022, the applicant submitted additional information to the respondent.

6. On 7 September 2022, the Development Application was referred to the Northern Beaches Council Development Determination Panel (DDP) for determination with an officer recommendation of approval.

7. On 14 September 2022, the Development Application was determined by the DDP by way of refusal. The Notice of Determination was provided to the applicant under cover of letter from the respondent on 26 September 2022 (being the date on which the decision was notified for the purpose of s 8.10(1) of the EPA Act).

8. On 22 March 2023, the proceedings were commenced, being within the appeal period prescribed by s 8.10 of the EPA Act.

9. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 29 August, 9 and 24 October 2023. I presided over the conciliation conference.

10. Amended plans and an updated cl 4.6 request prepared by Anna Williams of Blackwattle Planning were provided to the Court as part of the conciliation process (Amended Development Application) cited at [39]. The amendments can be summarised as follows:

1. increased setbacks to the rumpus room, bedroom three and the master suite walk-in robe;

2. decrease in gross floor area;

3. reduction in the number of side windows, and reduction in size and introduction of privacy measures to the stairwell window, on the first floor;

4. reduction in height of boundary wall; and

5. a revised stormwater management system.

11. During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

12. 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.

Jurisdictional considerations

13. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

14. The Amended Development Application was submitted by the applicant, being the registered proprietor of the Site.

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

15. The Amended Development Application is accompanied by a BASIX certificate (Cert No. A1373444-04, LEC-04, dated 23 October 2023) prepared by Evolving Design and Drafting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2021.

State Environmental Planning Policy (Resilience and Hazards) 2021

16. I accept the parties’ submission that the requirements of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Site is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Site’s longstanding history of residential use with no known history of potentially contaminating uses or events.

State Environmental Planning Policy (Transport and Infrastructure) 2021

17. For the purposes of s 2.48(1)(b)(iii) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP), the Site is located within 5 metres of an exposed overhead electricity power line. Pursuant to s 2.48(2) of the TISEPP, the consent authority must:

1. give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and

2. take into consideration any response to the notice that is received within 21 days after the notice is given.

18. The respondent provided notice of the Development Application, as lodged, to the electricity supply authority for the Site (Ausgrid). Ausgrid did not object to the development proposed, subject to conditions, which have been incorporate into the agreed conditions of consent.

19. In determining the Amended Development Application, I am satisfied that the relevant electricity supply authority’s response to the notification under s 2.48(2)(a) of the TISEPP has been considered.

Manly Local Environmental Plan 2013 – general

20. The Site is zoned R2 Low Density Residential under the Manly Local Environmental Plan 2013 (MLEP). Accordingly, semi-detached dwelling houses and additions and alterations to semi-detached dwellings are permitted with consent in the R2 zone. I have had regard to the zone objectives which are extracted below:

• 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.

21. The Development Application was notified between 14 June and 28 June 2022. Four written submissions objecting to the proposed development were received in response to the notification of the proposal. Two of the objectors addressed the Court at the on-site view associated with the conciliation conference. The Amended Development Application was informally notified to those persons who had initially made submissions from 10 to 17 October 2023. No further submissions were received.

22. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

23. The Amended Development Application seeks consent for excavation and earthworks. Clause 6.2(3) of the MLEP prescribes a number of mandatory matters that must be considered prior to the granting of development consent. In determining the Amended Development Application, I have considered the matters set out in cl 6.2(3) of the MLEP, including the fact that the parties have agreed conditions of consent with respect to the proposed earthworks.

24. Pursuant to cl 6.4 of the MLEP, development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied of various matters. Having reviewed the Amended Stormwater Management Plan dated 29 September 2023 prepared by Taylor Consulting, the Development Application Assessment Report contained in the Class 1 Application, and having regard to the agreed conditions of consent relating to stormwater disposal, I am satisfied of the matters listed in cl 6.4(3) of the MLEP.

25. Pursuant to cl 6.12 of the MLEP, development consent must not be granted to development unless the consent authority is satisfied that any of the services listed in cl 6.12(1) that are essential for the development are available or that adequate measures have been made to make them available when required.

26. The parties agree that all services that are essential for the proposed development are available to the Site, with agreed conditions of consent which require the new works to be suitably connected to relevant essential services. In determining the Amended Development Application, I am satisfied that the relevant essential services for the development are available or that adequate arrangements have been made to make them available when required.

MLEP – floor space ratio standard

27. The floor space ratio (FSR) standard applicable to the Site is 0.45:1 pursuant to cl 4.4 of the MLEP (FSR Standard). The parties agree that the Amended Development Application seeks consent for a FSR of 0.55:1, thereby exceeding the FSR Standard for the Site.

28. The applicant has prepared a written request, prepared pursuant to cl 4.6 of the MLEP which seeks to justify the variation to the FSR Standard (FSR Request). The parties agree that the FSR Request demonstrates that:

1. compliance with the FSR Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the MLEP);

2. there are sufficient environmental planning grounds to justify contravening the FSR Standard (pursuant to cl 4.6(3)(b) of the MLEP);

3. the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (pursuant to cl 4.6(4)(a)(i) of the MLEP); and

4. the proposed development will be in the public interest because it is consistent with the objectives of the FSR Standard and the objectives of the R2 zone in which the development is proposed to be carried out (pursuant to cl 4.6(4)(a)(ii) of the MLEP).

29. The objectives of the R2 zone that are said to be achieved are extracted above at [20].

30. The objectives of cl 4.4(1)(a) of the MLEP that are said to be achieved are extracted below:

(a) to ensure the bulk and scale of development is consistent with the existing and desired streetscape character,

(b) to control building density and bulk in relation to a site area to ensure that development does not obscure important landscape and townscape features,

(c) to maintain an appropriate visual relationship between new development and the existing character and landscape of the area,

(d) to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain,

(e) to provide for the viability of Zone E1 and encourage the development, expansion and diversity of business activities that will contribute to economic growth, the retention of local services and employment opportunities in local centres.

31. The FSR Request (relevantly extracted below) asserts that the strict application of the FSR Standard is unnecessary and unreasonable on the basis that:

1. The Amended Development Application meets the stated objectives of cl 4.4, specifically:

1. The Amended development Application will be consistent with the existing streetscape character comprising of a mix of one and two storey dwellings and semi-detached dwellings. The proposal has minimised its bulk and scale from the street with the height of the proposed dwelling reaching a maximum of 7.5m (being 1m below the height limit prescribed by the MLEP) and achieves a 12.5m setback on the upper level from the front boundary, making the proposal substantially lower and less prominent in the streetscape than many other nearby dwellings.

2. The Amended Development Application retains and protects the existing street tree immediately adjacent to the Site.

3. The Amended Development Application will maintain an appropriate visual relationship in the immediate locality by:

1. providing an additional setback to the side boundary at bedroom three, the stairwell window, the walk-in robe and rumpus room;

2. including a variety of materiality to provide articulation and soften the western façade, thereby improving its visual presence as viewed from the adjoining properties;

3. providing a lower floor level of the rear rumpus room on the first floor addition to provide a reduced scale and increased modulation to the western façade;

4. including a parapet roof line to the first floor addition to provide greater distinction between the existing and new structures, in accordance with the respondent’s preference;

5. cladding the eastern side of the party wall and reducing its height to achieve greater integration of the new work with the overall design and reduce visibility in the streetscape; and

6. the design is not prejudicing future development of the remaining dwelling in the semi-detached pair.

4. The Amended Development Application does not unreasonably affect the amenity of neighbours as it will not interrupt view lines or result in unreasonable additional shadow impacts and will have no adverse impact upon the public domain.

5. The Amended Development Application will extend the economic and functional life of the dwelling for a family and contribute to support the nearby neighbourhood and business zones.

2. The Amended Development Application meets the zone objectives of the R2 Low Density zone, specifically;

1. The Amended Development Application does not increase the density of the Site beyond a single dwelling and provides much needed additional floor space for the current and future occupants.

2. The Amended Development Application proposes a permissible use in the R2 zone and the continued use of the Site for a dwelling does not conflict with other permitted or approved land uses.

32. The FSR Request asserts that there are sufficient environmental planning grounds to justify contravening the development standard. The Site has an area of 334.5m² and is mapped with a minimum lot size of 500m², thereby comprising an “undersized lot” for the purposes of the Manly Development Control Plan 2013 (MDCP). Pursuant to Part 4, paragraph 4.1.3 of the MDCP, the respondent may consider exceptions to the FSR Standard when both the relevant MLEP objectives and provisions of the MDCP are satisfied. This means that the undersized nature of the lot may be considered in determining whether compliance with the relevant standard is unreasonable or unnecessary in the circumstances of the case and whether there are sufficient environmental planning grounds to justify contravening the development standard under cl 4.6(3) of the MLEP. To this end, the FSR Request notes that:

1. The Amended Development Application meets the relevant objectives of the MLEP as set out above.

2. The Amended Development Application meets the numerical provisions of the MDCP in all areas except for those relating to Total Open Space (shortfall of 29m²) and side setbacks (shortfall of between 420mm – 720mm, however 62% of the first floor façade complies with Part 4, paragraph 4.1.7 of the MDCP). The design does, however, satisfy the relevant provisions of the MDCP because it is able to meet the objectives of these provisions for the reasons set out in the FSR Request.

33. The FSR Request concludes that despite the minor non-compliance in Total Open Space and side setback calculations, the proposed development achieves the relevant objectives of each of these parts of the MDCP, thereby meeting the required tests of Part 4, paragraph 4.1.3 of the MDCP. The satisfaction of these tests supports the position that the undersized lot is a sufficient environmental planning ground under cl 4.6(3)(b) of the MLEP for varying the FSR Standard as provided for in the MDCP.

34. The respondent is satisfied that the FSR Request addresses the matters required to be demonstrated by cl 4.6(3) of the MLEP and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the FSR Standard and the objectives for development in the R2 zone. The respondent does not contend that the contravention of the FSR Standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard pursuant to cl 4.6(5) of the MLEP.

35. I am satisfied under cl 4.6(4) that the FSR Request has adequately addressed the matters required to be demonstrated by 4.6(3) and that the development proposed in the Amended Development Application will be in the public interest because it is consistent with the objectives of the FSR Standard set out in cl 4.4(1)(a) and the objectives for development in the R2 zone set out in the Land Use Table in the MLEP, for the reasons given in the FSR Request.

36. I have also considered whether the contravention of the FSR standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the MLEP. I find no grounds on which the Court should not uphold the FSR Request.

Conclusion

37. 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.

38. 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.

39. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation, to the applicant amending its development application so as to rely on the following amended materials:

Site Plan & Cover Page, Sheet No. 1/7	LEC/04	19.10.2023	Evolving Design & Drafting
Ground Floor Plan, Sheet No. 2/7	LEC/04	19.10.2023	Evolving Design & Drafting
First Floor Plan, Sheet No. 3/7	LEC/04	19.10.2023	Evolving Design & Drafting
Sections A-A, B-B & C-C, Sheet No. 4/7	LEC/04	19.10.2023	Evolving Design & Drafting
North & South Elevation, Sheet No. 5/7	LEC/04	19.10.2023	Evolving Design & Drafting
East & West Elevation, Sheet No. 6/7	LEC/04	19.10.2023	Evolving Design & Drafting
Window Schedule, Sheet No. 7/7	LEC/04	19.10.2023	Evolving Design & Drafting
External Schedule of Finishes	-	-	Evolving Design & Drafting
BASIX Certificate No. A1373444-04	LEC-04	23.10.2023	Evolving Design & Drafting
Stormwater Management Plan, STORM-1	29.09.2023	Taylor Consulting
Clause 4.6 Variation Request	05.10.2023	Anna Williams

Orders

40. The Court orders that:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, the applicant is to pay the costs of the respondent that are thrown away as a result of the Court allowing the applicant to file the Amended Development Application as agreed or assessed.

2. The updated written request made pursuant to cl 4.6 of the Manly Local Environmental Plan 2013, seeking to vary the floor space ratio development standard in cl 4.4 of the Manly Local Environmental Plan 2013 prepared by Anna Williams dated 5 October 2023, is upheld.

3. The appeal is upheld.

4. Development application No DA2022/0727, as amended, for alterations and additions to an existing semi-detached dwelling at 12 Clarence Street, Balgowlah, NSW, being Lot 1 in DP 445281, is determined by the grant of consent subject to conditions of consent in Annexure “A”.

5. The applicant is required to file the plans and documents referred to in order (4) within 7 days of the date of this judgment.

……………………….

N Targett

Acting Commissioner of the Court

Annexure A (212798, pdf)

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Decision last updated: 23 November 2023