Agliozzo v City of Canada Bay Council

[2024] NSWLEC 1831

Land and Environment Court

New South Wales

Medium Neutral Citation:

Agliozzo v City of Canada Bay Council [2024] NSWLEC 1831

Hearing dates:

Conciliation conferences on 4, 28 November and 4 December 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Class 1

Before:

Thorpe AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The written request prepared by Andrew Martin Planning made pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 seeking the grant of development consent in contravention of the LEP is upheld.

(3) The Development Application DA/2022/0189 as amended is determined by grant of consent for demolition of existing structures and construction of a multi unit residential flat building consisting of seven apartments and one basement level of parking at 43 Walton Crescent, Abbotsford (being Lot 1 in DP125078) subject to the conditions contained at Annexure A.

(4) The applicant is to pay the respondent's costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $2,000 within 28 days of these orders being made.

Catchwords:

DEVELOPMENT APPEAL – multi dwelling housing development – conciliation conference – agreement between the parties

Legislation Cited:

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

Land and Environment Court Act 1979 s 34

Canada Bay Local Environmental Plan 2023 cll 4.3, 4.4, 4.6, 5.10, 6.1, 6.2,

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2

State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development

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

Cases Cited:

Tenacity Consulting v Warringah Council [2004] NSWLEC 140

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Apartment Design Guide

Category:

Principal judgment

Parties:

Andrew Agliozzo(First Applicant)
Cathy Agliozzo (Second Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor)(Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/189609

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of development application DA/2022/0189 (DA) by City of Canada Bay Council (Council).

2. Andrew Agliozzo and Cathy Agliozzo seek consent for the demolition of existing structures and construction of a multi unit residential flat building consisting of seven apartments and one basement level of parking at 43 Walton Crescent, Abbotsford, legally described as Lot 1 in DP125078 (site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 4 and 28 November and 4 December 2024. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended to address various contentions, and subject to conditions.

4. 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. I have considered whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties’ agreement, and find that there are none. I attend to the relevant statutory matters below, assisted by the advice in the parties’ agreed jurisdictional statement received by the Court on 4 December 2024.

Jurisdictional considerations

5. The applicants are the owners of the property.

6. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether land is contaminated, and if contaminated, to be satisfied that the land is suitable for the purpose proposed. Based on the geotechnical report and the parties’ advice that the site has not been used for any purposes other than residential, I am satisfied that the parties have considered the contamination status of the site and that the site is suitable for the proposed development.

7. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 applies to the site. Based on the parties’ advice and the Arborist Report prepared by Tree MD Pty Ltd, I am satisfied that the proposal does not seek to remove or impact any existing native endemic trees or vegetation. The DA proposes a new landscape scheme which is consistent with the aims and intent of the chapter.

8. The relevant provisions of State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development and the Apartment Design Guide have been considered by the Design Verification Statement prepared by Habitation Design dated 9 November 2024. Based on the parties’ advice, I am satisfied that the application complies with SEPP 65.

9. The site is zoned R3 – Medium Density pursuant to Canada Bay Local Environmental Plan 2023 (CBLEP). The proposed development, as amended, is permissible with consent within the R3 zone.

10. The parties agree and I accept that the proposal is consistent with the aims of BLEP and with the objectives and land use table in respect of the R3 zone. I accept the advice of the parties that the DA complies with all development standards under CBLEP, except the height standard.

11. The parties agree that the proposal breaches the applicable height standard in cl 4.4. I am satisfied that consent should be granted notwithstanding this contravention. The development standard establishes a maximum height of 8.5m, pursuant to cl 4.3 of CBLEP. There are areas of non-compliance at the upper level of the building, which has a maximum height of 11.87m. I am satisfied that:

1. The written request dated October 2024, lodged pursuant to cl 4.6 of CBLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach allows the development to provide appropriate in-fill housing with a scale, built form and overall height which is compatible with other medium density housing in the area and with the desired future character of the locality.

2. The written request also adequately demonstrates that the contravention would not bring about a negative impact on local amenity. A detailed view loss assessment, following the steps in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, has been undertaken for the most affected properties. The view loss impact overall is ranked as negligible with no impact categorised as moderate or above.

3. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal achieves the objectives of the standard notwithstanding the non-compliance.

4. Based on the content of the written request and the Design Verification Statement prepared by Habitation Design dated 9 November 2024, the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

12. Clause 5.10 provides controls for heritage conservation. The site is not a heritage item and is not located with a heritage conservation area. While there are no locally listed buildings in close proximity to the subject site, the stone steps on public land at the corner of Walton Crescent and Marmion Road are locally listed heritage items (Item 480). A Heritage Impact Statement is submitted with the DA addressing potential impacts on the steps. Appropriate conditions are in place to protect the heritage item during the demolition and construction phase. The requirements of cl 5.10 are met.

13. Clause 6.1 applies because site is located within a Class 5 Acid Sulfate Soils area. The DA is supported by an Acid Sulfate Soils Assessment prepared by Geoffrey Ashton which concludes that the works proposed do not require the preparation of an Acid Sulfate Soil Management Plan. The requirements of cl 6.1 are met.

14. Section 6.2 applies because the DA proposes excavation works on the site. These earthworks have been investigated, are supported by the Geotechnical Investigation Report prepared by Foundation Earth Sciences, and will be undertaken in accordance with conditions of consent. I have considered the matters in cl 6.2(3). Based on the parties’ advice, I am satisfied that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. The requirements of cl 6.2 of CBLEP are met.

15. The parties advise that all required notification and referral has been undertaken. 35 submissions were received during the notification period, raising issues in relation to view loss, non-compliance with controls, bulk and scale and excavation. Council advises that all submissions have been considered and are satisfactorily addressed in the DA and conditions of consent.

16. The parties also advised me that they have considered Canada Bay Development Control Plan and that the proposal is generally compliant or otherwise satisfactory in their considered view.

Conclusion

17. Based on the above details, 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. It follows that I am in turn required to dispose of the proceedings in accordance with the parties’ decision.

18. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

19. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notations:

20. The Court notes that the City of Canada Bay Council, as the relevant consent authority, has approved, pursuant to cl 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending its Development Application No. DA/2022/0189 to include the following plans and documents:

Plan Ref	Date	Description	Issue
Architectural Plans Prepared by Habitation Design & Interiors
D100	08.11.24	COVER PAGE	D
D101	08.11.24	SURVEY	D
D102	08.11.24	SITE PLAN	D
D103	08.11.24	BASEMENT 1	D
D104	08.11.24	GROUND FLOOR	D
D105	08.11.24	LEVEL 1	D
D106	08.11.24	LEVEL 2	D
D107	08.11.24	LEVEL 3	D
D108	08.11.24	ROOF PLAN	D
D109	08.11.24	ELEVATIONS	D
D110	08.11.24	ELEVATIONS	D
D111	08.11.24	SECTIONS	D
D112	08.11.24	SECTIONS	D
D113	08.11.24	SECTION CALLOUT	D
D114	08.11.24	PLAN ANALYSIS	D
D115	08.11.24	ELEVATION ANALYSIS	D
D116	08.11.24	DRIVEWAY DETAIL	D
D117	08.11.24	DRIVEWAY DETAIL 2	D
D118	08.11.24	COURTYARD DRIVEWAY DETAIL	D
D119	08.11.24	CALCULATIONS	D
D120	08.11.24	CALCULATIONS	D
D121	08.11.24	CALCULATIONS	D
D122	08.11.24	CALCULATIONS	D
D123	08.11.24	SHADOW DIAGRAMS	D
D124	08.11.24	SHADOW DIAGRAMS	D
D125	08.11.24	SOLAR DIAGRAM	D
D126	08.11.24	CROSS FLOW ANALYSIS	D
D127	08.11.24	VIEW LOSS MAP	D
D128	08.11.24	VIEW LOSS DIAGRAM	D
D129	08.11.24	VIEW LOSS DIAGRAM	D
D130	08.11.24	VIEW LOSS DIAGRAM	D
D131	08.11.24	VIEW LOSS DIAGRAM	D
D132	08.11.24	MATERIALS AND FINISHES	D
D133	08.11.24	3D VIEWS	D
D134	08.11.24	3D VIEWS	D
D135	08.11.24	3D VIEWS	D
D136	08.11.24	AMENITY DIAGRAM 01	D
D137	08.11.24	AMENITY DIAGRAM 02	D
D138	08.11.24	AMENITY DIAGRAM 03	D
Stormwater plans prepared by Prime Engineering Consultants
SW01	08.11.24	COVER PAGE	G
SW02	08.11.24	SPECIFICATIONS SHEET	G
SW03	08.11.24	EROSION & SEDIMENT CONTROL PLAN	G
SW04	08.11.24	EROSION & SEDIMENT CONTROL DETAILS	G
SW05	08.11.24	STORMWATER PLAN – BASEMENT LEVEL	G
SW06	08.11.24	STORMWATER PLAN – GROUND FLOOR	G
SW07	08.11.24	STORMWATER PLAN – LEVEL 1	G
SW08	08.11.24	STORMWATER PLAN – LEVEL 2	G
SW10	08.11.24	STORMWATER DETAILS SHEET 1	G
SW11	08.11.24	STORMWATER DETAILS SHEET 2	G
SW12	08.11.24	STORMWATER DETAILS SHEET 3	G
Landscape plans prepared by Paul Scrivener Landscape
DA-S82 – 1/4	17.10.24	LANDSCAPE SITE PLAN	E
DA-S82 – 2/4	17.10.24	DETAIL PLAN – GROUND FLOOR	E
DA-S82 – 3/4	17.10.24	PLANTING PLAN – GROUND & LEVEL 1-4	E
DA-S82 – 4/4	17.10.24	DETAIL PLAN – LEVEL 1-3	E
Survey prepared by Mark Castelletti Surveying dated 19 June 2024
Revised Traffic & Assessment Report prepared by CJP Consulting Engineers dated 18 October 2024
Waste Management Plan prepared by Leigh Design dated 18 October 2024
BCA Report prepared by Design Right Consulting dated 28 October 2024
Clause 4.6 Variation Request prepared by Andrew Martin Planning dated October 2024
SEPP 65 Design Verification Statement prepared by Habitation Design dated 9 November 2024
Amenity Statement of Justification prepared by Habitation Design dated 8 November 2024
Stormwater Design Certificate prepared by Prime Consulting Engineers dated 8 November 2024
Structural Design Certificate prepared by Vanguard Consulting Engineers dated 8 November 2024
BCA Performance Solutions Report prepared by Ekror dated 28 November 2024
Variation Request to Canada Bay DCP General Controls – C9 Waste and Recycling Chutes dated November 2024
BASIX Certificate prepared by Outsource Ideas P/L dated 28 November 2024

Orders:

21. The Court orders:

1. The appeal is upheld.

2. The written request prepared by Andrew Martin Planning made pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 seeking the grant of development consent in contravention of the LEP is upheld.

3. The Development Application DA/2022/0189 as amended is determined by grant of consent for demolition of existing structures and construction of a multi unit residential flat building consisting of seven apartments and one basement level of parking at 43 Walton Crescent, Abbotsford (being Lot 1 in DP125078) subject to the conditions contained at Annexure A.

4. The applicant is to pay the respondent's costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $2,000 within 28 days of these orders being made.

A Thorpe

Acting Commissioner of the Court

Annexure A

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Decision last updated: 20 December 2024